Constitution of India, 1950—Article 136—Penal code, 1860—Section 302—The prisoners will be permitted to go on PAROLE for two weeks, once a year, which will be repeated throughout their period of incarceration provided their conduct, while at large, is found to be satisfactory.

Counsel for the Parties:

M/s. K. B. Rohtagi and Parveen Jain, Advocates, for Petitioners

O. P. Rana, Advocate, for Respondent.

order

1. We are not impressed with the grounds urged before us and so dismiss the Special Leave Petition. The conviction being one under Section 302, Indian Penal Code the sentence awarded, namely, one of life imprisonment is beyond interference, conviction and sentence must, therefore, stand.

2. We, however, notice that the petitioners in this case are in their early twenties. We must naturally give thought to the impact on these two young lives of a life sentence which means languishing in prison for years and years. Such induration of the soul induced by indefinite incarceration hardens the inmates, not softens their responses. Things as they are, long prison terms do not humanise or habilitate but debase and promote recidivism. A host of other vices, which are unmentionable in a judgment, haunt the long careers of incarceration, especially when young persons are forced into cells in the company of callous convicts who live in sex-starved circumstances. Therefore, the conscience of the court constrains it to issue appropriate directions which are policy-oriented, as part of the sentencing process, designed to make the life of the sentence inside jail restorative of his crippled psyche. One of the principal purpose of punitive deprivation of liberty, constitutionally sanctioned, is decriminalisation of the criminal and restoration his dignity, self-esteem and good citizenship, so that when the man emerges from the forbidding gates he becomes a socially useful individual. From the angle our prisons have to travel long distances to meet the ends of social justice.

3. In the present case, we think it proper to direct that the State Government and the Superintendent of the Prison concerned will ensure that the two prisoners are put to meaningful employment and, if permissible, to open prisons, as an experimental measure. Counsel for the State represents that there are open prisons in the State of Uttar Pradesh. We direct the State Government to despatch these two prisoners to one of the open prisons in Uttar Pradesh without standing on technical rules, if substantially they fulfil the required conditions.

4. We may take advantage of this opportunity to make a general direction to the State Government to draw up a set of rules to reform the pattern of prison life and to transform the present system in itself so that the harsher technologies inherited from imperial times are abandoned in favour of humane processes constitutionally enlivened under the Republic. These days, Prison Commissions are at work in many States and we do hope that the State of Utter Pradesh will hasten to bring compassion into prisons.

5. We are told that the two prisoners are agriculturists by profession. It is better, therefore, that they are put to use as agriculturists, within or without the prison compass Being young, they should also be trained in any other useful craft, if they have aptitude therefor, so that when eventually they emerge from the prison walls, they may be come sensitive citizens and not be an addition to the criminals proliferating in the country. We think that when prisoners are made to work, as these two ought to be under our directions, a small amount by way of wages could be paid and should be paid so that the healing effect on their minds is fully felt. Moreover, proper utlisation of services of prisoners in some meaningful employment, whether as cultivators or as craftsman or even in creative labour will be good from the society’s angle as it reduces the burden on the Public Exchequer and the tension within. Further, the humanising process will be facilitated by keeping the prisoners in contact with their families. This can be made feasible (a) by allowing members of the family to visit the prisoners and (b) by the prisoners, under guarded conditions, being permitted, at least once a year, to visit their families. We, therefore direct that all these be done by the State Government and the Superintendent under the authority of this Court’s order. The prisoners will be permitted to go on PAROLE for two weeks, once a year, which will be repeated throughout their period of incarceration provided their conduct, while at large, is found to be satisfactory. With these directions we dismiss the Special Leave Petition.

Interpretation of Statutes—Supplying deficiency—Duty of court while applying outdated legislation.

So, within the existing, dated legislation, new meanings must be read. Of course, new legislation is the best solution, but when lawmakers take far too long for social patience to suffer, as in this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the Prisons Act prescriptions. By this legal energetic they desired the court to read into vintage provisions legal remedies.

To give effect to the sentence means that it is allegal to exceed it and so it follows that a prison official who goes beyond mere imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Article 19. Punishments of rigorous imprisonment oblige the inmates to do hard labour, not harsh labour and so a vindictive officer victimising a prisoner by forcing on him particularly harsh and degrading jobs, violates the law’s mandate. For example, a prisoner, if forced to carry night soil, may seek a habeas writ. ‘Hard labour’ in Section 53 has to receive a humane meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.

PAROLE—Exercise of power by Government—Unsatisfactory and arbitrary exercise if is unconstitutional—Question left open.

Prison—Superintendence—Duty of District Magistrate under Prison Manual to visit and inspect jail—Scope of.

The District Magistrate must remember that in this capacity he is a judicial officer and not an executive head and must function as such independently of the prison executive. To make prisoners’ rights in correctional institutions viable, we direct the District Magistrate concerned to inspect the jails in his district once every week receive complaints from individual prisoners and enquire into them immediately. If he is too preoccupied with urgent work, Paragraph 42 enables him to depute a magistrate subordinate to him to visit and inspect the jail. What is important is that he should meet the prisoners separately if they have grievances. The presence of warders or officials will be inhibitive and must be avoided. He must ensure that his enquiry is confidential although subject to natural justice and does not lead to reprisals by jail officials. The rule speaks of the record of the result of each visit and inspection. This empowers him to enquire and pass orders. All orders issued by him shall be immediately complied with since obedience is obligated by Para 44(2). In the event of non-compliance he should immediately inform Government about such disobedience and advise the prisoner to forward his complaint to the High Court under Article 226 together with a copy of his own report to help the High Court exercise its habeas corpus power. Indeed, it will be practical, as suggested by the learned Solicitor General, if the District Magistrate keeps a grievance box in each ward to which free access shall be afforded to every inmate. It should be kept locked and sealed by him and on his periodical visit, he alone, or his surrogate, should open the box, find out the grievances, investigate their merits and take remedial action, if justified.

Prison—Conditions of—Right of family of prisoners to visit—Reasonableness of limitation.

Although there may be current limitations on the possible use of the Constitution on visitations by family and friends, public policy should dictate substantial improvements in this area, in any event.

We see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected.

Prison—Conditions of—Confining of young inmates alongwith others is inhuman and unreasonable.

Sex excesses and exploitative labour are the vices adolescents are subjected to by adults. The young inmates must be separated and freed from exploitation by adults. If Kuldip Nayar is right this rule is in cold storage. It is inhuman and unreasonable to throw young boys to the sex-starved adult prisoners or to run menial jobs for the affluent or tough prisoners. Article 19 then intervenes and shields.

Prison—Conditions of—Confining under trial alongwith the convicts inside the prison violates the test of reasonableness and fairness under the Constitution.

Sentence—Rigorous imprisonment—The sentence should be carried out but it cannot be exceeded—Convict sentenced to hard labour cannot be subjected to harsh labour under a vindictive officer.

Prison—Conditions of—Right of prisoners to personal liberty—Scope of—Duty of Court to prevent excesses committed by prison authorities on the prisoners.

Prison—Conditions of—Unsatisfactory, unreasonable and inhuman conditions prevailing in the prison—Specific directions given for prison reforms.

To clinch the issue and to spell out the precise directions is the next step.

1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing. The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated. Policing the police is becoming a new cembudsmanic task of the rule of law.

2. We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person of Prem Chand in vindictive sprit. In those rare cases of ‘dangerousness’ the rule of hearing and reasons set out by this Court in Batra’s case (AIR 1978 SC 1675) and elaborated earlier shall be complied with.

3. Lawyers nominated by the District Magistrate, Sessions Judge, High court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances.

4. Within the next three months, Grievances Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be accorded to all prisoners.

5. District Magistrates and Sessions Judges shall, personally or through surrogates, visits prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High court for the latter to initiate, if found necessary, habeas action.

6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action. (Conclusion)

We conclude with the hope that the State, though preoccupied with many pressing problems, will discharge its constitutional obligation to the invisible mortals incarcerated by it and legislatively and administratively re-make a Prison Code adhering to the high values of the Preamble.

Prison—Conditions of—Solitary confinement—Permissibility.

Prison—Conditions of—Right of prisoners to know their rights and responsibilities—Direction given for display of rights and responsibilities inside the prison.

Krishna Iyer, J—This writ petition originated, epistolery fashion, in a letter by a prisoner, Batra, to a judge of this Court (one of us), complaining of a brutal assault by a Head Warder on another prisoner, Prem Chand. Forms were forsaken since freedom was at stake and the letter was posted on the Bench to be metamorphosed into a habeas proceeding and was judicially navigated with eclectic creativity thanks to the humanist scholarship of Dr. Y. S. Chitale as amicus curiae, and the erudite passion for affirmative court action of Shri Soli Sorabjee, the learned Solicitor General. Where the prison process is de-humanised, forensic help, undeflected by the negative crudities of the adversary system, makes us dare where we might have daunted. The finest hour of justice comes when court and counsel constructively collaborate to fashion a relief in the individual case and fathom deeper to cure the institutional pathology which breeds wrongs and defies rights. Here, the individual is a prisoner whose anus was allegedly pierced with a warder’s baton and the institution is the Tihar Prison, right in the capital of the country and under the nose of the Home Ministry.

The Perspective.

2. This case is revelatory of several sins in this central penitentiary. ‘Some thing is rotting the State of Denmark!’ The constitutional imperative which informs our perspective in this habeas corpus proceedings must first be set out. The rule of law meets with its Waterloo when the State’s minions become lawbreakers and so the court, as the sentinel of the nation and the voice of the Constitution, runs down the violators with its writ and secures compliance with human rights even behind iron bars and by prison warders. This case is at once a symptom, a symbol and a signpost vis-a-vis human right in prison situations. When prison trauma prevails, prison justice must invigilate and hence we broaden our ‘habeas’ jurisdiction. Jurisprudence cannot slumber when the very campuses of punitive justice witness torture.

3. The petitioner does not seek the release of the prisoner because a life sentence keeps him in confinement. But the dynamic role of judicial remedies, after Batra’s case (1979) 1 SCR 392 imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live up to its reputation as bastion of liberty even within the secrecy of the hidden cell. Blackstone called it ‘the great and efficacious writ in all manner of illegal confinement’ and Lord Denman proclaimed in 1839 that it had been ‘for ages effectual to an extent never known in any other country’. So long as Batra remains good law, judicial policing of Bastille practices will broaden to embrace the wider range of prison vices. Dr. Chitale drew our attention to American legal literature disclosing the trend while Shri Soli Sorabjee for the Union of India, cited Corwin. Corwin’s remarks (Supplement to Edward S. Corwin’s. The Constitution p. 245 quoted in 1 supra at page No. 410) on American constitutional law, referred to with approval in Batra, has our assent: “Federal courts have intensified their oversight of State penal facilities, reflecting a heightened concern with the extent to which the ills that plague so-called correctional institution-overcrowding, understaffing, unsanitary facilities, brutality, constant fear of violence, lack of adequate medial and mental health care, poor food service, intrusive correspondence restrictions, inhumane isolation, segregation, inadequate or non-existent rehabilitative and/or educational programs, deficient recreational opportunities-violate the Eighth Amendment ban on cruel and unusual punishments.”

4. The essence of the matter is that in our era of human rights consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability. We ideologically accept the words of Will Durant (Sunil Batra v. Delhi Admn. (supra) at . 422). “It is time for all good men to come to the aid of their party, whose name is civilization.” Likewise, we endorse, as part of our constitutional thought, what the British Government’s White Paper, titled ‘People in Prison’, stated with telling effect:

A society that believes in the worth of individual beings can have the quality of its belief judged, at least in part, by the quality of its prison and probate services and of the resources made available to them.

The learned Solicitor General brought this key-note thought to our notice in the matchless diction of Sir Winston Churchill and briefly referred to in Batra (Ibid at page No. 423) in a speech seventy years ago:

The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A clam, dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State – a constant heart searching by all charged with the duty of punishment – a desire and eagerness to rehabilitate in the word of industry those who have paid their due in the hard coinage of punishment:tireless efforts towards the discovery of curative and regenerative processes:unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which, in the treatment of crime and criminal. mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it. (Winston Churchill when speaking, on July 25, 1910, as Home Secretary in the House of Commons. Truly, this is a perspective-setter and this is also the import of the Preamble and Art. 21 as we will presently see. We are satisfied that protection of the prisoner within his rights is part of the office of Art. 32.

5. ‘Prisons are built with stones of law, and so it behoves the court to insist that, in the eye of law, prisoners are persons, not animals, and punish the deviant ‘guardians’ of the prison system where they go berserk and defile the dignity of the human inmate. Prison houses are part of Indian earth and the Indian Constitution cannot be held at bay by jail officials ‘dressed in a little, brief authority’, when Part III is invoked by a convict. For when a prisoner is traumatized, the Constitution suffers a shock. And when the Court takes cognizance of such violence and violation, it does, like the hound of Heaven, ‘But with unhurrying chase. And unperturbed pace, Deliberate speed and Majestic instancy’ follow the official offender and frown down the outlaw adventure.

The facts

6. What are the facts which have triggered off this judicial action?

7. The re’sume’ of facts, foul on its face, reveals the legal issues raised, brings into focus the basics of prisoners’ rights and helps the court forge remedial directives so as to harmonise the expanding habeas jurisprudence with dawning horizons of human rights and enlightened measures of prison discipline. Batra, a convict under death sentence lodged in the Tihar Central Jail, came to know of a crime of torture practised upon another prisoner, Prem Chand, allegedly by a jail warder, Maggar Singh, as a means to extract money from the victim through his visiting relations. Batra braved the consequences of Jail indignation and brought the incident to the ken of the Court, resulting in these proceedings which, though not strictly traditional, are clearly in the nature of habeas corpus writ and, therefore, within the wider sweep of Art. 32. The court issued notice to the State and the concerned officials, appointed Dr. Y. S. Chitale and Shri Mukul Mudgal as amicus, authorised them to visit the prison, meet the prisoner and see relevant documents and interview necessary witnesses so as to enable them to inform themselves about the surrounding circumstances and the cruel scenario of events. Counsel on both sides have sensitized the issue of prison justice admirably and catalysed the cause of jail reforms effectively. The democratic hope of the profession is its ‘peoples orientation, not its lucrative potential nor is intellecutal intricacies. And service in the field of the handicapped human sectors, like prisoners, is a social justice contribution. The enthusiastic work done in the case by the young lawyer, Shri Mudgal, assisting Dr. Chitale, deserves our commendation, even as the unreserved support rendered to the Court by Shri Sachthey is in the good tradition of the Bar.

8. Back to the facts. One central episode round which the skein of further facts is would is beyond doubt, viz. that Prem Chand, the prisoner, sustained serious and injury on or about August 26, 1979, because a rod was driven into that sore aperture to inflict inhuman torture. The contemporaneous entry in the Jail Hospital register reads:

One prisoner Prem Chand s/o Pyare Lal has developed tear of anus due to forced insertion of stick by someone. He requires surgical repair and his bleeding has not stopped. He is to go to Irwin Hospital casualty immediately. Remarks of Superintendent. Noted 27-8-1979 ad. D. S. I. 2.35 p. m.. S. I. 2.35 p. m.

Sd/- Dr. Kapoor

2.00 p. M.

The prisoner’s later narration to the doctor in the Irwin Hospital corroborates the case. The unsuccessful and unworthy attempts, presumably by overawing the prisoner and even the doctor, and other dubious devices, which we do not now scan, to do away with this primary incriminating factor by offering incredible alternatives like rupture of the anus by a fall or self-infliction or due to piles and sillier stories, only show how the subtle torture of the officials could extract false-hoods from the victim and even medical officers, exculpatory of the official criminal whoever he be. There are some traces of attempts to hush up the crime where the higher officers have not been that innocent. We are taken aback that the tardy police investigation, with its lethargic pace and collusive ways, has hardly done credit to the Police Department’s integrity, a fact that the Government will take note of, without institutional sheltering of police delinquents. Imagine a police investigator, hunting for contradictions obviously to absolve the head warder by interrogating Dr. Kapoor who had made an entry in the hospital register and told Dr. Chitale that the prisoner had an anal rupture which could not be self inflicted or caused by a fall and was so serious as to require immediate removal to Irwin Hospital, and making him say, long afterwards on 2-10 1979 by delaying the laying of the charge-sheet thus:

“A prisoner named Prem Chand s/o Prehlad was produced before me for treatment on the afternoon of Sunday 26th August, 1979. He was brought by some warder.

He was complaining of bleeding from boils on the buttocks. This was also told by the warder who brought him.

He was given the required treatment as he was kept under observation on his request.

Next day during the ward rounds when I examined him, he was having tears of anus and bleeding. On inquiring he told that this has happened due to forced insertion of a stick into his anus.

Then he was referred to Irwin Hospital for further treatment.

V. K. Kapoor

2-10-79”

9. Can human nature be such rubber? More than the probity of the investigation and the veracity of the doctor are at stake-hope in human integrity without which human dignity will be the first casualty.

10. These observations are not impressionistic but we leave it at that since our primary purpose is to protect the person of the prisoner, not to prosecute the offender. We do not wish to prejudice that process. Regrettably, the ‘hearsay’ affidavit of the under Secretary (Home), Delhi Administration, Shri Nathu Ram, blinks at the jail vices and merely dresses up the official version without so much as an inquisitorial audit of the lurid happenings in a premier correctional institution of the nation. We deplore the indifferent affiant’s omnibus approval of every official’s conduct, whereas we should, instead, have expected Government, which sincerely swears by human rights and whose political echelons in succession, over the decades, are not strangers to the actualities in these detention campuses, to have put aside the tendency to white-wash every action with an official flavour. Where human rights are at stake prestige has no place.

11. After the prisoner was subjected to brutal hurt he was removed to the jail hospital and later to the Irwin Hospital but on his re-transfer he was neglected; but we do not pursue the identity of the culprit or the crime or the treatment since a police investigation is under way. Nevertheless, we cannot but remark that whatever damage might have been done up to now, a second investigation by a C.B.I. officer is justified, if truth has been suppressed. Dr. Chitale pointed out certain poignant facts such as the prisoner himself having been pressured into statements contrary to the case of anal infliction. We do not make comments on them although we are unhappy at the way the business of investigation has been done. Indeed, the potential for oblique mutual help between the police and the prison staff makes jail offences by jail officials undetectable; and so, to obviate this possibility, the C. B. I. may well be entrusted, as a regular practice, with such cases. The prisoner being a person, we cannot write him off.

12. The alleged offender, Warder Maggar Singh, may be left aside for a while. There are other aspects of the torture which demand deeper probe and panacea. The prisoner’s explanation for the anal rupture is stated to be an unfulfilled demand for money, allegedly a general practice. This shows, if true, that bribery, at the point of barbarity, is a flourishing trade within the house of punishment itself. How stern should the sentence be for such official criminals and how diligent should the State be to stamp out this wicked temptation:If you want to end prison delinquencies you must abolish the motivations and opportunities.

13. The counter case, if we may so call it, of the Warder as disclosed in the Superintendent’s report, is equally disturbing, if true:

On 25-8-79 evening life prisoner Prem Chand s/o Sh. Prahlad was produced before the Deputy Superintendent for taking Mandrix tablets. As he was in state of intoxication because of taking mandrix tablets which he admitted before the Deputy Superintendent, he was kept in a cell pending orders of the Superintendent, Central Jail. He was taken to the jail hospital the next day i.e. on 26-8-79 on a report from the abovesaid prisoner as he had pain in his name and was bleeding. The prisoner remained admitted into the jail hospital up to 27-8-79, 2 p.m. when Dr. V. K. Kapoor, Medical Officer, recommended for the shifting of this prisoner to the Irwin Hospital with the report mentioned in the petition. The prisoner Prem Chand was shifted accordingly by Shri Bachan Singh, Assistant Superintendent on duty on 27-8-79. The undersigned was informed that a case under S. 385 I.P.C. had been registered against Warder Maggar Singh in-charge of the ward No. 11 i.e. 40 cells with the police station Janakpur and investigation had started in this case. The result of the investigation is still awarded. The prisoner was, however, received back in the jail on 29-8-79 on being discharged from the Irwin Hospital.

14. The prisoner, Prem Chand, was kept in a ‘punishment cell’ which, according to counsel for the Administration, was not as bad as a solitary cell, although Dr. Chitale says that this was similar to the type of insulated confinement condemned as unconstitutional by this Court in Sunil Batra’ case (supra). Coming to the competing version put forward by the prison official through the counter-affidavit of the Under Secretary, the story, even if true, is strongly suggestive of a Mafia-culture pervasive in the Tihar prison. A background of the ethos of the campus may be gleaned from portions of the report of the Superintendent Central Jail, Tihar made by him with reference to the alleged torture which is the subject matter of this case.

A number of prisoners in the Tihar Jail are habitual offenders, professional criminals who have been inmates of the Jail from time to time. A number of the said prisoners are rarely visited by their relatives due to the fact that they do not want to associate with such persons. It has been seen that such prisoners are mainly visited by other professionals or habitual offenders in the field with whom they have had former associations….It has been noticed these types of prisoners have been able to develop a certain rapport with some of the lower staff in the jail namely Head Warders, Warders etc., and obtain certain facilities illegally including smuggling of numbers of items, e.g. drugs etc. for their use. It may also be submitted that to check smuggling of narcotic drugs against prisoners who indulge in such activities 30 cases of narcotic offences were got registered against the prisoners with the Janakpuri Police Station during this year….That 95 prisoners were transferred from the Jail to Haryana due to administrative reasons which include indiscipline and violation of jail regulations by them and otherwise derogatory behaviour during the last year….This year also about 22 cases have been recommended by Superintendent, Jail for transfer….In para 568 (b) and the note thereunder of the Jail Manual, the habituals are required to be kept separate from the casual prisoners but due to non-availability of any other jail in Delhi they are being kept in Tihar Jail, which requires a lot of vigilance on the part of the jail officers. (b) It may also be mentioned that due to paucity of accommodation, the said jail is occupied by double the number of prisoners than it is otherwise authorised.

15. To aggravate the malady, we have the fact that a substantial number of the prisoners are under-trials who have to face their cases in court and are presumably innocent until convicted. By being sent to Tihar Jail they are, by contamination, made criminals – a custodial perversity which violates the test of reasonableness in Art. 19 and of fairness in Art. 21. How cruel would it be if one went to a hospital for a check-up and by being kept along with contagious cases came home with a new disease. We should the tocsin that prison reform is now a constitutional compulsion and its neglect may lead to drastic court action.

16. It would appear that around 300 persons are taken in and out daily between the prison and the courts. And when there are political agitations and consequent police arrests and remand to custody, the under-trial strength swells in numbers with production of prisoners in court, the case of the Superintendent is that the other prisoners “try to do mischief, make thefts of other prisoners who go on work smuggle things and even resort to assaults.”

17. To sum up, the Tihar prison is an arena of tension, trauma, tantrums and crimes of violence, vulgarity and corruption. And to cap it all, there occurs the contamination of pre-trial accused with habituals and “injurious prisoners of international gang”. The crowning piece is that the jail officials themselves are allegedly in league with the criminals in the cells. That is, there is a large network of criminals, officials and non-officials in the house of correction:Drug racket, alcoholism, smuggling, violence, theft, unconstitutional punishment by way of solitary cellular life and transfers to other jails are not uncommon. The Administration, if it does not immediately have the horrendous situation examined by an impartial, authoritative body, and santize the campus, complacent affidavits of Under Secretaries and glittering entries from dignitaries on their casual visits, cannot help.

18. While the Establishment sought to produce before the Court extracts from the Visitors’ Book to show that many impartial and distinguished persons had complimented the jail authorities on the way they managed the prison. Dr. Chitale placed before us some internal evidence from the materials on record, supplemented strongly by personal observations recorded while he was an internee in this very prison by Shri Kuldip Nayar, a responsible journalist with no apparent motive for mendacity nor inclination for subjectivity, in his book “In Jail”. There was nothing in the author’s view which money could not buy within the recesses of the prison campus. Giving a factual narrative, Shri Nayar wrote:

“………One could get as much money as one wanted from outside again at a price. There was a money order and mail service that perhaps was more dependable than what the postal department could offer.

For instance, when a prisoner in my ward wanted two hundred rupees, he sent a note through a warder to his people in Old Delhi and is less than twenty-four hours he had the money. He paid sixty-six rupees as collecting charges – thirty-three per cent was the prescribed “money order charge”….Dharma Teja, the shipping magnate who served his sentence in Tihar, for instance, had thousands of rupees delivered to him, we were told. And if one could pay the jail functionaries one could have all the comforts one sought. Teja had all the comforts – he had an air cooler in his cell, a radio-cum-record player set and even the facility of using the phone….Haridas Mundhra, a business man who was convicted of fraud, was another rich man who spent some time in Tihar. Not only did he have all the facilities, but he could also go out of the jail whenever he liked; at times he would be out for several days and travel even up to Calcutta. All this, of course, cost a lot of money. An even richer prisoner was Ram Krishan Dalmia; he spent most of his jail term in hospital. He was known for his generosity to jail authorities, and one doctor received a car as a gift. But more than businessmen it was the smugglers jailed in Tihar who were lavish spenders. Their food came from Moti Mahal and their whisky from Connaught Place. They had not only wine but also women. “Babuji, not tarts but real society girls”, one warder said. The women would be brought in when “the Sahiblog” went home for lunch, and their empty offices became “recreation rooms”.

Corruption in jail was so well organised and so systematic that everything went like clockwork once the price had been paid. Jail employees at almost all levels were involved, and everyone’s share was fixed. There was never a dispute; there has to be the proverbial honour among thieves.’

One wonders whether such an indictment made by an established writer had inclined the Government at least to appoint an Inquiry Commission to acquaint itself with the criminal life-style of correctional institutions. The higher officials also have their finger in the pie, if Nayar were veracious:

‘Perhaps the way almost everyone had his cut was most evident in our milk supply. It came in bulk to the main gate (phatak) there, enough milk for the top officials was taken out of the cans, which were then topped up with water. And as the cans moved to the wards, all those two handled them appropriated their share:again topping up with water.

Even more shocking than the corruption was the ingenious “slave system” we found in the jail. The slaves were boys between ten and eighteen employed as “helpers”, and there were scores of them. They cooked washed utensils, cleaned rooms, fetched water and did much back-breaking labour to “help” the men who were paid to do these chores. They would he woken up before 6 a.m. to prepare the morning tea and would be allowed to sleep around 10 p.m. after scrubbing the pots and pans – they were herded into a ward which had no fan and no proper sanitary facilities, but was always well lit with many bulbs on all night, to enable a sleepy warder to check at a glance that they were all there.

These boys were under-trial prisoners; many had been there for eight months and at least one had been there for two years. They were taken from one court to another to be tried under one charge or another and kept in jail all the while. The aim was to keep them in as long as possible, for without them the people employed to do the menial duties would have no time to relax.

One morning I was woken up by the sobbing of a boy, and found some other “helpers” trying to console him, while a warder stood by quite unmoved. I went up to him; his curly hair reminded me of Raju, my younger son. The boy had been picked up the previous evening from Defence Colony in New Delhi, kept in a police lock-up for the night and brought to jail in the morning”. The crime of punishment is a new crime which the rule of law must reach at, but what is touching beyond tears, even if there be but a title, of truth in the statement “In Jail”, is about children being lapped up and locked up for use as bonded labour in punitive houses of justice. The modus operandi is sensitively set down by Kuldip Nayar:

The warder explained that whenever the number of prisoners in Jail went up, the police were asked to bring in boys to help with the chores. For the past several days, the warder said, jail authorities had been pestering the police to get more helpers as the number of detenus had gone up. The evening before, when the boy was buying paan (betel-leaf) from a Defence Colony stop, the police had hauled him up as a vagabond, they were responding to the jail authorities appeal to book more helpers.

“This is nothing new, it has always been like this” the warder explained, several undertrial boys later relate to me their tales of woe, how they were arrested on trumped up charges and how they were being held in detention on one pretext or another. Kuldip Nayar, “In Jail” pp. 30-34.

19. We may, at this stage, go in greater detail into the functional expansion of habeas corpus writs in the current milieu especially because counsel on both sides have compellings contended for an authoritative pronouncement by this court in favour of a broader jurisdiction.

20. We have earlier noticed that the valuable writ is capable of multiple uses as developed in the American Jurisdiction. Such is the view expressed by many legal writers. In Harvard Civil Rights and Civil Liberties Law Review 1970 Vol. 9, the view has been expressed that beyond the conventional blinkers, courts have begun to examine the manner in which an inmate is held or treated during the currency of his sentence. Similar is the thinking expressed by other writers, R.J. Sharpe in “The Law of Habeas Corpus” (1976) Edn. Juvenal, Satires in 72 Yale Law Journal 506 (1963). In American Jurisprudence there is a pregnant observation:2d, Vol. 39 p. 185 para 11:

The Writ is not and never has been a static, narrow formalistic remedy. Its scope has grown to achieve its purpose – the protection of individuals against erosion of the right to be free from wrongful restraints on their liberty.

Corpus Juris, 2d, Vol. 39, page 274, para 7 strikes a similar note, away from the traditional strain. The courts in ‘America have, through the decisional process, brought the rule of law into the prison system pushing back, pro tanto, the hands-off doctrine. In the leading case of Coffin v. Raichard, 143 F 2d 443 at page No. 445 the Court of Appeal observed, delineating the ambit and uses of the writ of habeas corpus:

The Government has the absolute right to hold prisoners for offences against it but it also has the correlative duty to protect them against assault or injury from any quarter while so held. A prisoner is entitled to the writ of habeas corpus when, though lawfully in custody, he is deprived of some right to which he is lawfully entitled even in his confinement, the deprivation of which serves to make his imprisonment more burdensome than the law allows or curtails his liberty to a greater extent than the law permits.

When a man possesses a substantial right, the court will be diligent in finding a way to protect it. The fact that a person is legally in prison does not prevent the use of habeas corpus to protect his other inherent rights….The Judge is not limited to a simple remand or discharge of the prisoner’s civil rights be respected….

It is significant that the United States Supreme Court has even considered as suitable for habeas relief, censorship of prisoners’ mail and the ban on the use of law students to conduct interviews with prison inmates in matters of legal relief. In (1974) 40 L Ed 2d 224 these two questions fell for decision and the court exercised jurisdiction even in such an internal matter. In Johnson v. Avery (1969) 21 L Ed 2d 718 a disciplinary action was challenged by a prisoner through a writ of habeas corpus. This indicates the extension of the nature of the writ in the American jurisdiction. Incidentally and interestingly, there is reference to some States in the United States experimenting with programmes of allowing senior law students to service the penitentairies. At a later stage; when we concrete definite directives. We may have occasion to refer to the use of senior law students for rendering legal aid to prisoners; and so it is worthwhile extracting a passage from Johnson v. Avery (supra) with reference to the Kansas Law School Programme in Prisons at Leavenworth:

The experience at Leavenworth has shown that there have been very few attacks upon the (prison) administrations; that prospective frivolous litigation has been screened out and that where the law school felt the prisoner had a good cause of action relief was granted in a great percentage of cases. A large part of the activity was disposing of long outstanding detainers lodged against the inmates. In addition, the programme handles civil matters such as domestic relations problems and compensation claims. Even where there has been no tangible success, the fact that the inmate had someone on the fact that the inmate had someone on the outside listen to him and analyse his problems had a most beneficial effect. We think that these programs have been beneficial not only to the inmates but to the students, the staff and the courts.

Incidentally, the presence of law students at the elbow of the prisoner has a preventive effect on ward and warden.

21. The content of our constitutional liberties being no less, the dynamics of habeas writs there developed help the judicial process here. Indeed, the full potential of Arts. 21, 19, 14, after Maneka Gandhi (supra), has been unfolded by this Court in Hoskot (supra) and Batra (supra). Today, human rights jurisprudence in India has a constitutional status and sweep, thanks to Art. 21 so that this magna carta may well toll the knell of human bondage beyond civilised limits.

22. The supplementary statement of the Superintendent of the Central Jail (partly quoted earlier) is hair-raising when we find that far from rehabilitation, intensification of criminality is happening there and the officials are part of this sub-culture. We, certainly do not wish to generalise but do mean to highlight the facts of life behind the high walls as demanding constitutional and administrative attention. Homage to human rights, if it springs from the heart, calls for action. Prisons, prison staff and prisoner – all three are in need of reformation. And this milieu apparently is not unique to Tihar but common to many penal institutions. 23. It is refreshing and heartening that the learned Solicitor General widened our vista and argued that this court, having been seized of the problem of prisoners’ fundamental freedoms and their traumatic abridgement, should give guidelines in this uncharted area, design procedures and devise mechanisms which will go into effective action when the restricted yet real rights of prisoners are overtly or covertly invaded. The jurisdiction of this court to remedy the violation of prisoners’ residuary rights was discussed at the har, as also the package of plausible measures which may appropriately be issued to ensure the functional success of justice when rights are infringed by officials or fellow-prisoners. Both sides appreciated the gravity of the jail situation, the sensitivity of security considerations, the virginity of this file of law and the necessity for normative rules and operative monitoring within the framework of judicial remedies. This constructive stance of counsel, unusual in litigative negativity, facilitated our resolution of the problems of jail justice, despite the touch of jurisprudential novelty and call to judicial creativity.

24. We must formulate the points argued before we proceed to state our reasoning and record our conclusions.

1. Has the court jurisdiction to consider prisoners’ grievance, not demanding release but, within the incarceratory circumstances, complaining of ill-treatment and curtailment short of illegal detention? Yes. We have answered it.

2. What are the broad contours of the fundamental rights, especially Arts. 14, 19 and 21 which belong to a detainee sentenced by court ? Here too, the ground has been covered.

3. What judicial remedies can be granted to prevent and punish their breach and to provide access to prison justice?

4. What practicable prescriptions and proscriptions bearing on prison practices can be drawn up by the court consistently with the existing provisions of the Prisons Act and Rules bent to shape to conform to Part III?

5. What prison reform perspectives and strategies should be adopted to strengthen, in the long run, the constitutional mandates and human rights imperatives?

25. The canvas was spread wide by counsel and court and we deal with the arguments within the larger spread out of the case. Rulings of this court have highlighted the fact that the framers of our Constitution have freed the powers under Art. 32 from the rigid restraints of the traditional English Writs. Flexible directives, even affirmative action mouled to grant relief, may realistically be issued and fall within its fertile width. The jurisdictional dimension is lucently laid down by Subba Rao, J. in Dwarkanath’s case (1965) 3 SCR 536 at pages 540-541.

This article is couched in comprehensive phraseology and it ex facie confers a wide power on the High courts to reach injustice wherever it is found. The Constitution designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression “nature” for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them. That apart, High Courts can also issue directions, orders or writs other than the prerogative writs. It enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country. Any attempt to equate the scope of the power of the High Court under Art. 226 of the Constitution with that of the English Courts to issue prerogative writs is to introduce the unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government into a vast country like India functioning under a federal structure. Such a construction defeats the purpose of the article itself.

26. Where injustice, verging on inhumanity, emerges from hacking human rights guaranteed in Part III and the victim beseeches the Court to intervene and relive, this court will be a functional futility as a constitutional instrumentality if it guns do not go into action until the wrong is righted. The court is not a distant abstraction omnipotent in the books but an activist institution which is the cynosure of public hope. We hold that the court can issue writs to meet the new challenges. Lord Scarman’s similar admonition, in his English Law – The New Dimensions, is an encouraging omen. The objection, if any, is obsolete because in a prison situation, a Constitution Bench of this Court (Batra and Sobraj (1978) 4 SCC 494 did imprison the powers of prison officials, to put an under-trial under iron fetters or confine in solitary cells convicts with death sentences under appeal.

27. Once jurisdiction is granted – and we affirm in unmistakable terms that the court has, under Art. 32 and so too under Art. 226, a clear power and, therefore, a public duty to give relief to sentences in prison settings – the next question is the jurisprudential backing for the play of that jurisdiction. Here again, Batra has blazed the trial and it binds.

28. Are prisoners persons? Yes, of course. To answer in the negative is to convict the nation and the Constitution of dehumanization and to repudiate the world legal order, which now recognises rights of prisoners in the international Covenant on Prisoners’ Rights to which our country has signed assent. In Batra’s case (supra), this Court has rejected the hands off doctrine and it has been ruled that fundamental rights do not flee the person as he enters the prison although they may suffer shrinkage necessitated by incarceration. Our constitutional culture has now crystallised in favour of prison justice and judicial jurisdiction Sunil Batra v. Delhi Admn. (1979) 1 SCR 392 at pages 409-410.

The jurisdictional reach and range of this court’s writ to hold prison caprice and cruelty in constitutional leash is incontestable, but teasing intrusion into administrative discretion is legal anathema, absent breaches of constitutional rights or prescribed procedures.

29. The U. S. Supreme Court, in like situations, has spoken firmly and humanistically, and these observations have the tacit approval of our Court in Batra’s case Justice Dougas put it thus (Ibid p. 412):

Prisoners are still ‘persons’ entitled to all constitutional rights unless their liberty has been constitutionally curtailed by procedures that satisfy all the requirements of due process.

Justice Marshall strongly seconded the view:(Ibid p. 412).

I have previously stated my view that a prisoner does not shed his basic constitutional rights at the prison gate, and I fully support the court’s holding that the interest of inmates in freedom from imposition of serious discipline is a ‘liberty’ entitled to due process protection.

30. We, therefore, affirm that where the rights of a prisoner either under the Constitution or under other law, are violated the writ power of the court can and should run to his rescue. There is a warrant for this vigil. The court process costs the convict into the prison system and the deprivation of his freedom is not a blind penitentiary affliction but a belighted institutionalisation geared to a social good. The court has a continuing responsibility to ensure that the constitutional purpose of the deprivation is not defeated by the prison administration. In a few cases, this validation of judicial invigilation of prisoners’ condition has been voiced by this court and finally reinforced by the Constitution Bench in Batra (supra).

The Court need not adopt a “hands off” attitude……in regard to the problem of prison administration. It is all the more so because a convict is in prison under the order and direction of the court”.

Under the caption “Retention of Authority over Prisoner by Sentencing Judge” Krantz notes:Shaldon Krantz. Corrections and Prisoners’ Rights at 274-75.

As noted by Judge Law in a Judicial Mandate, Trial Magazine (Nov-Dec. 1971) at page No. 15:

It should be the responsibility of the court in imposing the sentence to set forth as it would in any equitable decree, the end to be achieved and the specifies necessary to achieve that purpose. If then, we are to have accountability in the execution of the sentence, courts must make clear what is intended in the imposition of the sentence. Every sentence should be couched in terms similar to a mandatory injunction. In this manner, the penology system is to be held to account if the government does not faithfully execute the order.

In other words, the sentencing court should be required to retain jurisdiction to ensure that the prison system responds to the purposes of the sentences. If it does not, the sentencing court could arguably have the authority to demand compliance with the sentence or even order the prisoner released for non-compliance.

Whether inside prison or outside, a person shall not be deprived of his guaranteed freedom save by methods ‘right, just and fair’. Bhagwati J. in Maneka Gandhi (1978) 1 SCC 248 at page No. 284 observed.

The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or nonarbitrariness pervades Art. 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the test of reasonableness in order to be in conformity with Art. 14. It must be “right and just and fair” and not arbitrary, fanciful or oppressive; otherwise it would be no procedure at all and the requirement of Article 21 would not be satisfied.

31. Hoskot (1979) 1 SCR 192 at page No. 203 applied the rule in Maneka Gandhi (supra) to a prison setting and held that “one component of fair procedure is natural justice”. Thus, it is now clear law that a prisoner wears the armour of basic freedom even behind bars and that on breach thereof by lawless officials the law will respond to his distress signals through ‘writ’ aid. The Indian human has a constant companion – the court armed with the Constitution. The weapon is ‘habeas’ the power is Part III and the projectile is Batra (supra).

No iron curtain can be drawn between the prisoner and the Constitution.

It is, therefore, the court’s concern, implicit in the power to deprive the sentence of his personal liberty, to ensure that no more and no less than is warranted by the sentence happens. If the prisoner breaks down because of mental torture, psychic pressure or physical infliction beyond the licit limits of lawful imprisonment the Prison Administration shall be liable for the excess. On the contrary, if an influential convict is able to buy advantages and liberties to avoid or water down the deprivation implied in the sentence the Prison Establishment will be called to order for such adulteration or dilution of court sentences by executive palliation, if unwarranted by law. One of us, in Batra (supra) observed:

Suffice it to say that, so long as judges are invigilators and enforcers of Constitutionality and performance auditors of legality and convicts serve terms in that grim microcosm called prison by the mandate of the court a continuing institutional responsibility vests in the system to monitor in the incarceratory process and prevent security ‘excesses’. Jailors are bound by the rule of law and cannot inflict supplementary sentence under disguises or defeat the primary purposes of imprisonment.

32. The upshot of this discussion is but this. The Court has power and responsibility to intervene and protect the prisoner against mayhem, crude or subtle and may use habeas corpus for enforcing in-prison humanism and forbiddance of harsher restraints and heavier severities than the sentence carries. We hold these propositions to be self-evident in our constitutional order and is supported by authority, if need be. Therefore, we issue the writ to the Lt. Governor and the Superintendent of the Central Jail that the prisoner, Prem Chand, shall not be subjected to physical manhandling by any jail official, that the shameful and painful torture to which he has been subjected – a blot on Government’s claim to protect human rights – shall be ended and the wound on his person given proper medical care and treatment. The Central Government will, we are sure, direct its Jail staff not to show too pachydermic a disposition for a democratic Government. For example, specific guidelines before punishing a prisoner had been given in Batra’s case, (supra) and yet the prisoner Prem Chand has been lodged in the punishment cell, which is almost the same as a solitary cell, with cavalier disregard for procedural safeguards. Merely to plead that many prisoners are ‘habituals’ is no ground for habitual violation of law by officials. We direct that Prem Chand be released from the punishment cell and shall not be subjected to such severity until fair procedure is complied with.

33. The chronic callousness of the Prison System to the humane demands of the Constitution, despite the fact that many ministers over many decades in many States have known the unbroken tradition of prison sub-culture and despite prison diaries ofnational figures from Jawaharlal Nehru to Jay Prakash Narain, has made court and counsel benignly turn the judicial focus on the future so that further mischief may not be suffered in incarceration. There is little doubt that barbarities like bar fetters and hand-cuffs are recklessly being practised either on account of ignorant unconscionableness or wilful viciousness in several detention camps. Many of the victims are poor, mute, illiterate, desperate and destitute and too distant from the law to be aware of their rights or ask for access to justice, especially when the running tension of the prison and the grisly potential for zoological reprisals stare them in the face. So it is for the court to harken when humanity calls, without waiting for particular petitions. Like class actions, class remedies have pro bono value.

34. The court – the learned Solicitor General underscored this constructive approach – must not wait for a stray petition from some weeping inmate and give the little person a little reliefs in the little case but give the nation, its Governments, prison establishments and correctional departments, needed guidance and also fill with hope the hearts of those who cherish human rights that the courts are, after all, sentinels on the qui vive. Law is what law does and courts, if anything, are constitutional in action. Dr. Chitale, naturally, joined this moving demand. We do think that there are many, drawn from the class of penury, who suffer more privations than there are many, drawn from the class of penury, who suffer more privations than their sentences justify. Ralph Ellisons’s picture of the American Black has relevance for the prisoner here:

I am an invisible man….I am a man of substance, of flesh and bone, fibre and liquids – and I might even be said to possess a mind. I am invisible, understand, simply because people refuse to see me…When they approach me they see only my surroundings, themselves, or figments of their imagination – indeed, everything and anything except me.

The invisibility to which I refer occurs because of a peculiar deposition of the eyes of those with whom I come in contact. A matter of construction of their inner eyes, those eyes with which they look through their physical eyes upon reality….You wonder whether you are not simply a phantom in other people’s minds….you ache with the need to convince yourself that you do exist in the real world, that you’re a part of all the sound and anguish, and you strike out with your fists, you curse and you swear to make them recognise you. And, alas, it is seldom successful.

35. In a culture of Antyodaya, the court must rescue the weakest by preemptive guidance without driving parties to post-facto litigation. In law as in medicine, prevention is better than cure, a rule jurisprudents have not sufficiently developed, and so we accede to the request of counsel and proceed to discuss the normative side of prison justice.

36. Before we begin this chapter we might as well set down what the learned Solicitor General stressed viz. that the detailed guidelines set out in the separate opinion in Batra’s case (pages 488 to 495) are the same as are implicit in the judgment of Desai, J. speaking for the other Judges and this position should be re-emphasised by this court here so as to avoid misconception. Desai, J. has stated.

Justice Krishna Iyer has delivered an elaborate judgment which deals with important issues raised before us at great length and with great care and ‘concern. We have given a separate opinion, not because we differ with him on fundamentals, but because we thought it necessary to express our views on certain aspects of the questions canvassed before us.

37. Likewise, in the separate judgment, a similar statement is made:

I am aware that a splendid condensation of the answers to the core questions has been presented by my learned brother Desai. J. and I endorse the conclusion.

38. A close perusal shows that both the judgments in Batra’s case lay down the same rule and the elaborate guidelines in the first opinion are a necessary proliferation of the law expounded in the second judgment in the case. We hold, agreeing with both counsel, that the detailed prescriptions in the separate opinion in Sunil Batra (pp. 488 to 493) is correct law and binds the penal institutions in the country. We agree with these guidelines and express ourselves to that effect since the core question raised in the present case and the cardinal principles we have accepted lead to the same conclusions.

39. At the outset, we notice the widespread prevalence of legal illiteracy even among lawyers about the rights of prisoners. Access to law postulates awareness of law and activist awareness of legal rights is the condition for seeking court justice. So the first need in the juristic twilight is for the State to produce and update a handbook on Prison Justice, lucid, legible for the lay, accurate, comprehensive and, above all, practical in meeting the felt necessities and daily problems of prison life. The Indian Bar has, as part of its judicare tryst a special responsibility to assist the State in this behalf. A useful handbook prepared by the American Civil Liberties Union was handed up to us by Dr. Chitale title “The Rights of Prisoners”. Law in the books and in the courts is of no help unless it reaches the prisoner in understandable language and available form. We, therefore, draw the attention of the State to the need to get ready a Prisoners’ Handbook in the regional language and make them freely available to the inmates. To know the law is the first step to be free from fear of unlaw.

40. Prisoners are peculiary and doubly handicapped. For one thing, most prisoners belong to the weaker segment, in poverty, literacy, social station and the like. Secondly, the prison house is a walled-off world which incommunicado for the human world, with the result that the bonded inmates are invisible, their voices inaudible, their injustices unheeded. So it is imperative, as implicit in Art.21, that life or liberty, shall not be kept in suspended animation or congealed into animal existence without the freshening flow of fair procedure. The meaning of ‘life’ given by Field J., approved in Kharak Singh (1964) 1 SCR 332 at page No. 357 and Maneka Gandhi, (1978) 1 SCC 248 bears exception:

Something more than mere animal existence. The inhibition against its deprivation extended to all those limbs and faculties by which life is enjoyed. The provision equally prohibits the mutilation of the body by the amputation of an arm or leg, or the putting out of an eye, or the destruction of any other organ of the body through which the soul communicates with the outer world.

Therefore, inside prisons are persons and their personhood, if crippled by law keepers turning law-breakers, shall be forbidden by the writ of this court from such wrong-doing. Fair procedure, in dealing with prisoners, therefore, calls for another dimension of access of law-provision, within easy reach, of the law which limits liberty to persons who are prevented from moving out of prison gates.

41. A handbook meets the logistics of the law in the field. Of course, the prison staff also suffer from the pathology of misinformation or non-education about rights and limitations and this ignorantia juris situation leads to insensitivity to human rights and a test in the handbook of prison law must be a minimum for recruitment. The peril to prison rights is from the uninstructed personnel, apart from the anti-cultural ethos which permeates. It behoves Government to insist on the professional requirement, for warders and wardens of a hearty familiarity with the basics of Prison Law.

42. Rights jurisprudence is important but becomes an abstraction in the absence of remedial jurisprudence. Law is not an omnipotence in the sky but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bull’s eye. We have made it clear that no prisoner can be personally subjected to deprivations not necessitated by the fact of incarceration and the sentence of Court. All other freedoms belong to him to read and write, to exercise and recreation, to meditation and chant, to creative comforts like protection from extreme cold and heat, to freedom from indignities like compulsory nudity, forced sodomy and other unbearable vulgarity, to movement within the prison campus subject to requirements of discipline and security, to the minimal joys of self-expression, to acquire skills and techniques and all other fundamental rights tailored to the limitations of imprisonment.

Chandrachud, J., long ago, spelt out the position and we affirm it:D. Bhuvan Mohan Patnaik v. State of A. P. (1975) 2 SCR 24 at page No. 26.

“Convicts are not, by mere reason of the conviction, denuded of all the fundamental rights which they otherwise possess. A compulsion under the authority of law, following upon a conviction, to live in a prison-house entails by its own force the deprivation of fundamental freedoms like the right to move freely throughout the territory of India or the right to practise’ a profession. A man of profession would thus stand stripped of his right to hold consultations while serving out his sentence. But the Constitution guarantees other freedoms like the right to acquire, hold and dispose of property for the exercise of which incarceration can be no impediment. Likewise, even a convict is entitled to the precious right guaranteed by Article 21 of the Constitution that he shall not be deprived of his life or personal liberty except according to procedure established by law.”

43. We think it proper to suggest that in our country of past colonial subjection and consequent trepidation in life, publicity officially is necessary for rights to be appreciated even by the beneficiaries. Therefore, large notice boards displaying the rights and responsibilities of prisoners may be hung up in prominent places within the prison in the language of the people. We are dealing with the mechanics of bringing the law within the wakeful ken of the affected persons:

44. Section 61 of the Prisons Act, simplified imaginatively leads to the same result. That section reads:

“Copies of rules, under Sections 59 and 60 so far as they affect the government of prisons, shall be exhibited, both in English and in the Vernacular, in some place to which all persons employed within a prison have access”.

45. We think it right to hold that copies of the Prison Manual shall be kept within ready reach of prisoners. Darkness never does anyone any good and light never any harm.

46. Perhaps, the most important right of a prisoner is to the integrity of his physical person and mental personality. This Court is Batra’s case (supra) has referred to the international wave of torture of prisoners found in an article entitled ‘Minds Behind Bars’. That heightens our anxiety to solve the issue of prisoners’ protection.

47. The problem of law, when it is called upon to defend persons hidden by the law is to evolve a positive culture and higher consciousness and preventive mechanisms, sensitized strategies and humanist agencies which will bring healing balm to bleeding hearts. Indeed, counsel on both sides carefully endeavoured to help the Court to evolve remedial processes and personal within the framework of the Prisons Act and the parameters of the Constitution.

48. Inflictions may take many protean forms, apart from physical assaults. Pushing the prisoner into a solitary cell, denial of a necessary amenity, and, more dreadful sometimes, transfer to a distant prison where visits or society of friends or relations may be snapped, allotment of degrading labour, assigning him to a desperate or tough gang and the like, may be punitive in effect. Every such affliction or abridgment is an infraction of liberty or life in its wider sense and cannot be sustained unless Art. 21 is satisfied. There must be a corrective procedure, fair and reasonable and effective. Such infraction will be arbitrary, under Article 14, if it is dependent on unguided discretion, unreasonable, under Art. 19 if it is irremediable and unappealable and unfair, under Art. 21 if it violates natural justice. The string of guidelines in Batra set out in the first judgment, which we adopt, provides for a hearing at some stages, a review by a superior, and early judicial consideration so that the proceedings may not hop from Caesar to Caesar. We direct strict compliance with those norms and institutional provisions for that purpose.

49. Likewise, no personal harm, whether by way of punishment or otherwise, shall be suffered by a prisoner without affording a preventive, or in special cases, post facto remedy before an impartial, competent, available agency.

50. The Court is always ready to correct injustice but it is no practical proposition to drive every victim to move the court for a writ, knowing the actual hurdles and the prison realities. True, technicalities and legal niceties are no impediment to the court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found; still, the awe and distance of courts, the legalese and mystique, keep the institution unapproachable. More realistic is to devise a method of taking the healing law to the injured victim. That system is best where the remedy will rush to the injury on the slightest summons. So, within the existing, dated legislation, new meanings must be read. Of course, new legislation is the best solution, but when lawmakers take far too long for social patience to suffer, as in this very case of prison reform, courts have to make-do with interpretation and carve on wood and sculpt on stone ready at hand and not wait for far away marble architecture. Counsel rivetted their attention on this pragmatic engineering and jointly helped the court to constitutionalise the Prisons Act prescriptions. By this legal energetics they desired the court to read into vintage provisions legal remedies.

51. Primarily, the prison authority has the duty to give effect to the court sentence. (See for e.g. Ss. 15 and 16 of the Prisoners Act, 1900). To give effect to the sentence means that it is illegal to exceed it and so it follows that a prison official who goes beyond mere imprisonment or deprivation of locomotion and assaults or otherwise compels the doing of things not covered by the sentence acts in violation of Art. 19. Punishments of rigorous imprisonment oblige the inmates to do hard labour, not harshlabour and so a vindictive officer victimising a prisoner by forcing on him particularly harsh and degrading jobs, violatives the law’s mandate. For example, a prisoner, if forced to carry night soil, may seek a habeas writ. ‘Hard labour’ in S.53 has to receive a humane meaning. A girl student or a male weakling sentenced to rigorous imprisonment may not be forced to break stones for nine hours a day. The prisoner cannot demand soft jobs but may reasonably be assigned congenial jobs. Sense and sympathy are not enemies of penal asylums.

52. Section 27 (2) and (3) of the Prisons Act states: “27. The requisitions of this Act with respect to the separation of prisoners are as follows:

(1) **********

(2) in a prison where male prisoners under the age of twenty-one are confined, means shall be provided for separating them altogether from the other prisoners and for separating those of them who have arrived at the age of puberty from those who have not.

The materials we have referred to earlier indicate slurring over this rule and its violation must be visited with judicial correction and punishment of the jail staff. Sex excesses and exploitative labour are the vices adolescents are subjected to by adults. The young inmates must be separated and freed from exploitation by adults. If Kuldip Nayar is right this rule is in cold storage. It is inhuman and unreasonable to throw young boys to the sex-starved adult prisoners or to run menial jobs for the affluent or tough prisoners. Art. 19 then intervenes and shields.

53. Section 29 and connected rules relating to solitary confinement have been covered by Batra’s case (supra). But Prem Chand, in this very case, has been sent to a ‘solitary or ‘punishment’ cell without heading the rule in Batra’s case regarding impost of punitive solitary confinement. We cannot agree that the cell is not ‘Solitary’ and wonder what sadistic delight is derived by the warders and wardens by such cruelty. Any harsh isolation from society by long, lonely, cellular detention is penal and so must be inflicted only consistently with fair procedure. The learned Solicitor General mentioned that some prisoners, for their own safety, may desire segregation. In such cases, written consent and immediate report to higher authority are the least, if abuse is to be tabooed.

54. Visits to prisoners by family and friends are a solace in insulation; and only a dehumanised system can derive vicarious delight in depriving prison inmates of this humane amenity. Subject, of course, to search and discipline and other security criteria, the right to society of fellow-men, parents and other family members cannot be denied in the light of Art. 19 and its sweep. Moreover, the whole habilitative purpose of sentencing is to soften, not to harden, and this will be promoted by more such meetings. A sullen, forlorn prisoner is a dangerous criminal in the making and the prison is the factory ! Sheldon Krantz rightly remarks:Sheldon Krantz, Corrections and Prisoners Rights pp. 129-130.

In 1973, the National Advisory Commission argued that prisoners should have a “right” to visitation. Task Force Report, Corrections (1973) at 66. It also argued that correctional officials should not merely tolerate visiting but should encourage it, particularly by families. Although the Commission recognised that regulations were necessary to contend with space problems and with security concerns, it proposed that priority be given to making visiting areas pleasant and unobstrusive. It also urged that corrections officials should not eavesdrop on conversations or otherwise interfere with the participants’ privacy. Thus, although there may be current limitations on the possible use of the Constitution on visitations by family and friends, public policy should dictate substantial improvements in this area, in any event. We see no reason why the right to be visited under reasonable restrictions, should not claim current constitutional status. We hold, subject to considerations of security and discipline, that liberal visits by family members, close friends and legitimate callers, are part of the prisoners’ kit of rights and shall be respected.

55. PAROLE, again, is a subject which is as yet unsatisfactory and arbitrary but we are not called upon to explore that constitutional area and defer it. Likewise, to fetter prisoners in irons is an inhumanity unjustified save where safe custody is otherwise impossible. The routine resort to handcuffs and irons bespeaks a barbarity hostile to our goal of human dignity and social justice. And yet this unconstitutionality is heartlessly popular in many penitentiaries so much so a penitent law must proescribe its use in any but the gravest situation.

56. These rights and safeguards need a machinery. Therefore internal invigilation and independent oversight cannot be overemphasised Prisoners’ rights and prison wrongs are a challenge to remedial creativity.

57. Krantz, in his book notes:

To respond to the need for effective grievance procedure will probably require both the creation of internal programs (formal complaint procedures) and programs involving “outsiders” (Ombudsmen, citizens investigate committee, mediators, etc.) So, apart from judicial review for prisoners’ rights and condition of confinement, we have to fabricate instant administrative grievance procedures.

58. Indeed, a new chapter of offences carrying severe punishments when prison officials become delinquents is an urgent item on the agenda of prison reform; and lodging of complaints of such offences together with investigation and trial by independent agencies must also find a place in such a scheme. We are dealing with a morbid world where sun and light are banished and crime has neurotic dimensions. Special situations need special solutions.

59. We reach the most critical phase of counsel’s submissions viz., the legal fabrication and engineering of a remedial machinery within the fearless reach of the weakest of victims and worked with independence, accessibility and power to review and punish. Prison power, absent judicial watch tower, may tend towards torture.

60. The Prisons Act and Rules need revision if a constitutionally and culturally congruous code is to be fashioned. The model jail manual, we are unhappy to say and concur in this view with the learned Solicitor General, is far from a model and is, perhaps, a product of prison officials insufficiently instructed in the imperatives of the Constitution and unawakened to the new hues of human rights. We accept, for the nonce, the suggestion of the Solicitor General that within the existing statutory framework the requirements of constitutionalism may be read. He heavily relies on the need for a judicial agency whose presence, direct or by delegate, within the prison walls will deal with grievances. For this purpose, he relies on the Board of Visitors, their powers and duties, as a functional substitute for a Prison Ombudsman. A controllerate is the desideratum for in situ reception and redressal of grievances.

61. After all, the daily happenings, when they hurt harshly, have to be arrested forthwith, especially when it is the prison guards and the head warders who brush with the prison inmates. Their behaviour often causes friction and fear but when their doings are impeached, the institutional defence mechanism tends to protect them from top to buttom. So much so, injustice escapes punishment.

62. In this context it is apt to quote David Rudovsky:The Rights of Prisoners, p. 25.

The present system puts absolute discretion and day-to-day power over every aspect of a prisoner’s life in their hands. It is this part of prison life which causes the deepest resentment among prisoners for, to a large extent, the manner in which an inmate is treated by the guards determines the severity of conditions he will have to endure. It is a double irony that the lower the level of authority in prison (from warden on down to guard) the greater the discretion that is vested in the prison official and the less willing the courts are to review their decisions. Thus, whether it be a request for medical treatment, the right to go to the yard or prison library, or the potentially more serious matter of prison discipline and punishment, the guard on the block holds ultimate power over the prisoner. Complete discretion in the context of prison life where no remedies exist to correct it, can be catastrophic, Judge Sebeloff has put it bluntly:

In fact, prison guards may be more vulnerable to he corrupting influence of unchecked authority than most people. It is well known that prisons are operated on minimum budgets and that poor salaries and working conditions make it difficult to attract high-calibre personnel. Moreover, the “training” of the officers in dealing with obstreperous prisoners is but a euphemism in most States.

You cannot rehabilitate a man through brutality and disrespect….If you treat a man like an animal, then you must expect him to act like one. For every action there is a reaction….And in order for an inmate, to act like a human being you must trust him as such….You can’t spit in his face and expect him to smile and say thank you.

The institution and composition of the Board of Visitors comes in handy and has statutory sanction. The visitatorial power is wide, the panel of visitors includes judicial officers and such a situation can be pressed into service legally to fulfil the constitutional needs. Para 47 read with Para 53-A sets out the structure of the Board Para 47 (b) to (d) includes District and Sessions Judges, District Magistrates and Sub-Divisional Magistrates among the members. The functions of visitors are enumerated in Paras 53 and 53-B and they include (a) inspect the barracks, cells, wards workshed and other buildings of the jail generally and the cooked food; (b) ascertain whether considerations of health, cleanliness, and security are attended to, whether proper management and discipline are maintained in every respect, and whether any prisoner is illegally detained, or is detained for an undue length of time, while awaiting trial; (c) examine jail registers and records; (d) heirs, attend to all representations and petitions made, by or on behalf of prisoners; and (e) direct, if deemed advisable that any such representation or petitions be forwarded to Government. In the sensitive area of prison justice, the judicial members have special responsibilities and they must act as wholly independent overseers and not as ceremonial panelists. The judges are guardians of prisoners’ rights because they have a duty to secure the execution of the sentences without excesses and to sustain the personal liberties of prisoners without violence on or violation of the inmates personality. Moreover, when a wrong is done inside jail the judicial visitor is virtually a peripatetic tribunal and sentinel, at once intra-mural and extra-mural, observer, receiver and adjudicator of grievances.

63. What, then, are prisoner Prem Chand’s rights, in the specific setting of this case where the complaint is that a jail warder for pernicious purposes inflicted physical torture?

64. The Punjab Prison Manual clearly lays down the duties of District Magistrates with reference to Central Jails. Para 41 (1) and (3), read thus:

41. (1) It shall be the duty of the Magistrate of the district from time to time to visit and inspect jails situate within the limits of his district and to satisfy himself that the provisions of the Prisons Act, 1894, and of all rules, regulations, directions and orders made or issued thereunder applicable to such jail, are duly observed and inforced.

**********

(3) A record of the result of each visit and inspection made, shall be entered in a register to be maintained by the Superintendent for the purpose.

Para 42 is also relevant:

42. In the absence of the Magistrate of the district from headquarters, or in the event of that officer being at any time unable from any cause to visit the jail in the manner in these rules prescribed in that behalf, he shall depute a Magistrate subordinate to him who is available for the duty, to visit and inspect the jail on his behalf. Any officer so deputed may, subject to the control of the Magistrate of the district, exercise all or any of the powers by the Prisons Act, 1894, or these rules, conferred upon the Magistrate of the district.

Paragraph 44 clothes the District Magistrate with powers and makes his orders liable to be obeyed.

44. (1) The orders passed under sub-section (2) of Section 11 of the Prisons Act, 1894, should, except in emergent cases in which immediate action is, in the opinion of such Magistrate necessary, be so expressed that the Superintendent, may have time to refer (if he thinks necessary) to the Inspector-General before taking action thereon.

(2) All orders issued by the Magistrate of the district shall, if expressed in terms requiring immediate compliance, be forthwith obeyed and a report made, as prescribed in the said sub-section, to the Inspector-General.

65. We understand these provisions to cover the ground of reception of grievance from prisoners and issuance of orders thereon after prompt enquiry. The District Magistrate must remember that in this capacity he is a judicial officer and not an executive head and must function as such independently of the prison executive. To make prisoners’ rights in correctional institutions viable, we direct the District Magistrate concerned to inspect the jails in his district once every week receive complaints from individual prisoners and enquire into them immediately. If he is too preoccupied with urgent work, Paragraph 42 enables him to depute a magistrate subordinate to him to visit and inspect the jail. What is important is that he should meet the prisoners separately if they have grievances. The presence of warders or officials will be inhibitive and must be avoided. He must ensure that his enquiry is confidential although subject to natural justice and does not lead to repraisals by jail officials. The rule speaks of the record of the result of each visit and inspection. This empowers him to enquire and pass orders. All orders issued by him shall be immediately complied with since obedience is obligated by Para 44 (2). In the event of non-compliance he should immediately inform Government about such disobedience and advise the prisoner to forward his complaint to the High Court under Art. 226 together with a copy of his own report to help the High Court exercise its habeas corpus power. Indeed, it will be practical, as suggested by the learned Solicitor General, if the District Magistrate keeps a grievance box in each ward to which free access shall be afforded to every inmate. It should be kept locked and sealed by him and on his periodical visit, he alone, or his surrogate, should open the box, find out the grievances, investigate their merits and take remedial action, if justified.

66. Chapter V of the Manual deals with visitors who are an important component of jail management. Para 47 specially mentions District and Sessions Judges, District Magistrates, Sub Divisional Magistrates and Superintendents of Police as members of the Board of Visitors. In fact, Sessions Judges are required to visit the jails periodically the District Magistrates and Sub-Divisional Magistrates and Magistrates subordinate to them and others appointed by them in this behalf are to visit jails in their jurisdiction once a week under the existing rule. We direct, in implementation of the constitutional obligation we have already discussed at length to safeguard prisoners’ fundamental rights, that the Sessions Judges and District Magistrates or other subordinates nominated by them shall visit jails once a week in their visitatorial functions.

67. Para 49 has strategic significance and may be reproduced:

49. (1) Any official visitor may examine all or any of the books, papers and records all or any of the books, papers and records of any department of, and may interview any prisoner confined in the jail.

(2) It should be the duty of every official visitor to satisfy himself that the provisions of the Prisons Act, 1894, and of the rules, regulations, orders and directions made or issued thereunder, are duly observed, and to hear and bring to notice any complaint or representation made to him by any prisoner.

68. We understand this provision to mean that the Sessions Judge, District Magistrate or their nominees shall hear complaints, examine all documents, take evidence, interview prisoners and check to see if there is deviance, disobedience, delinquency or the like which infringes upon the rights of prisoners. They have a duty “to hear and bring to notice any complaint or representation made to him by any prisoner”. Nothing clearer isneeded to empower these judicial officers to investigate and adjudicate upon grievances. We direct the Sessions Judges concerned, under his lock and seal, to keep a requisite number of grievance boxes in the prison and give necessary directions to the Superintendent to see that free access is afforded to put in complaints of encroachments, injuries or torture by any prisoner, where he needs remedial action. Such boxes shall not be tempered with by anyone and shall be opened only under the authority of the Sessions Judge. We need hardly emphasise the utmost vigilance and authority that the Sessions Judge must sensitively exercise in this situation since prisoner’s personal liberty depends, in this undetectable campus upon his awareness, activism, adjudication and enforcement. Constitutional rights shall not be emasculated by the insouciance of judicial officers.

69. The prison authorities shall not, in any manner, obstruct or non-co-operate with reception or enquiry into the complaints. Otherwise, prompt punitive action must follow, the High Court or the Supreme Court must be apprised of the grievance so that habeas corpus may issue after due hearing. Para 53 is important in this context and we reproduce it below:

53. All visitors shall be afforded every facility for observing the state of the jail, and the management thereof, and shall be allowed access under proper regulations, to all parts of the jail and to every prisoner confined therein.

Every visitor should have the power to call for and inspects any book or other record in the jail unless the Superintendent, for reasons to be recorded in writing, declines on the ground that its production is undesirable. Similarly, every visitor should have the right to see any prisoner and to put any questions to him out of the hearing of any jail officer. There should be one visitor’s book for both classes of visitors, their remarks should in both cases be forwarded to the Inspector General who should pass such orders as he thinks necessary, and a copy of the Inspector-General’s order should be sent to the visitor concerned.

Paras 53-B and 55-D are not only supplementary but procedurally vital, being protective provisions from the stand point of prisoners. We except them here for double emphasis although adverted to earlier.

53-B. All visitors, official and non-official, at every visit, shall-

(a) inspect the barracks, cells, wards, workshed and other buildings of the jail generally and cooked food;

(b) ascertain whether considerations of health, cleanliness, and security are attended to, whether proper management and discipline are maintained in every respect, and whether any prisoner is illegally detained, or is detained for an undue length of time, while awaiting trial.

(c) examine jail registers and records;

(d) hear, attend to all representations and petitions made, by or on behalf of prisoners; and

(e) direct, if deemed advisable, that any such representations or petitions be forwarded to Government.

53-D. No prisoner shall be punished for any statement made by him to a visitor unless an enquiry made by a Magistrate results in a finding that it is false.

We hope-indeed, we direct- the judicial and other official visitors to live up to the expectations of these two rules and strictly implement their mandate. Para 54 is also part of this package of visitatorial provisions with invigilatory relevance. We expect compliance with these provisions and if the situation demands it, report to the High Court for action in the case of any violation of any fundamental right of a prisoner.

70. The long journey through jail law territory proves that a big void exists in legal remedies for prisoner injustices and so constitutional mandates can become living companions of banished humane only if non-traditional procedures, duly oriented personnel and realistic reliefs meet the fundamental challenge. Broadly speaking, habeas corpus powers and administrative measures are the pillars of prisoners’ rights. The former is invaluable and inviolable, but for an illiterate timorous, indigent inmate community judicial remedies remain frozen. Even so this constitutional power must discard formalities, dispense with full particulars and demand of the detainer all facts to decide if humane and fair treatment prevails, constitutionally sufficient and comporting with the minimum international standards for treatment of prisoners. Publicity within the prison community of court rulings in this area will go a long way to restore the morale of inmates and, hopefully, of the warders. So we direct the Delhi Administration to reach, in Hindi, the essentials of this ruling to the ken of the jail people.

71. The stress that we lay is on the need of the Court to be dynamic and diversified in meeting out remedies to prisoners. Not merely the contempt power but also the power to create ad hoc, and use the services of, officers of justice must be brought into play. In this very case, Dr. Chitale, as amicus curiae, was so authorised, with satisfactory results. American juristic thought has considered similar action:by courts using

Masters – Primarily fact finders for the court;

Receivers – Primarily hold, manage, or liquidate property;

“Special” Masters – responsible for multiple functions such as fashioning a plan and assisting in its implementation;

Monitors – responsible for observing the implementation process and reporting to the court; and

Ombudsmen – responsible for hearing inmate complaints and grievances, conducting investigations and making recommendations to the court.

The use of special judicial officers, like the use of the contempt power, holds considerable promise for assisting courts in enforcing judicial orders. Hopefully, their use will be expanded and refined over time.

These measures are needed since the condition is escalating.

72. The situation in Tihar Jail is a reflection of crime explosion, judicial slowmotion and mechanical police action coupled with unscientific negativity and expensive futility of the prison Administration. The Superintendent wails in court that the conditions are almost unmanageable.

i) Huge overcrowding in the jail. Normal population of the jail remains between 2300-2500 against 1273 sanctioned accommodation.

iv) Untrained mostly the warders guard and their being non-transferable.

v) A long distance from the courts of the jail and production of a large number of under-trial prisoners roughly between 250-300 daily and their receiving back into the jail in the evening. vi) The population of the jail having a large number of drug addicts, habitual pickpockets having regular gangs outside to look after their interests legal and illegal both from outside.

73. Other jails may compete with Tihar to bear the palm in bad treatment and so the problem is pan-Indian. That is why we have been persuaded by the learned Solicitor General to adventure into this undiscovered territory. The Indian Bar, and may be, the Bar Council of India and the academic community, must aid the court and country in this Operation Prison Justice. In a democracy, a wrong to someone is a wrong to every one and an unpunished criminal makes society vicariously guilty. This larger perspective validates our decisional range.

74. Before we crystallise the directions we issue one paramount thought must be expressed. The goal of imprisonment is not only punitive but restorative, to make an offender a non-offender. In Batra’s case (supra) this desideratum was stated and it is our constitutional law, now implicit in Art. 19 itself. Rehabilitation is a prized purpose of prison ‘hospitalization’. A criminal must be cured and cruelty is not curative even as poking a bleeding wound is not healing. Social justice and social defence – the sanction behind prison deprivation – ask for enlightened habilitative procedures. A learned writer has said:

The only way that we will ever have prisons that operate with a substantial degree of justice and fairness is when all concerned with that prison – staff and prisoners alike – share in a meaningful way the decision-making process, share the making of rule and their enforcement. This should not mean three “snitches” appointed by the warder to be an “inmate advisory committee” However, if we are to instill in people a respect for the democratic process, which is now the free world attempts to live, we are not achieving that by forcing people to live in the most totalitarian institution that we have in our society. Thus, ways must be developed to involve prisoners in the process of making decision that affect every aspect of their life in prison.

The Standard Minimum Rules, put out by United Nations agencies, also accent on socialization of prisoners and social defences:

57. Imprisonment and other measures which result in cutting off an offender from the outside world are afflictive by the very fact of taking from the person the right of self-determination by depriving him of his liberty. Therefore the prison system shall not except as incidental to justifiable segregation or the maintenance of discipline, aggravate the suffering inherent in such a situation.

58. The purpose of justification of a sentence of imprisonment or a similar measure deprivative of liberty is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self supporting life.

59. To this end, the institution should utilize all the remedial, educational, moral, spiritual and other forces and forms of assistance which are appropriate and available, and should seek to apply them according to the individual treatment needs of the prisoners.

75. Prison processed rehabilitation has been singularly unsuccessful in the West and the recidivism rate in our country also bears similar testimony:To get tough to create more tension to inflict more cruel punishment, is to promote more stress, more criminality more desperate beastliness and is self-defeating though soothing to sadists. Halleck, a professor at the University of Wisconsin says:(Roger G. Lanphear, Freedom From Crime p.5).

The stresses that lead to mental illness are often the same stresses that lead to crime. Mental illness always has a maladaptive quality and criminally usually has a maladaptive quality.

The final panacea for prison injustice is, therefore, more dynamic, far more positive, strategies by going back to man, the inner man. The ward-warden relationship needs holistic repair if prisons are, in Gandhian terms, to become hospitals, if penology, as modern criminologists claim, is to turn therapeutic. The hope of society from investment in the penitentiary actualises only when the inner man within each man, doing the penance of prison life, transforms his outer values and harmonises the environmental realities with the infinite potential of his imprisoned being. Meditative experiments, followup researches and welcome results in many countries lend optimism to techniques of broadening awareness, deepening consciousness and quietening the psychic being. The time for prison reform has come when Indian methodology on these lines is given a chance. We do no more than indicate the signposts to Freedom From Crime.

76. The final panacea for prison injustice is, therefore, more dynamic, far more positive, strategies by going back to man, the inner man. The ward-warden relationship needs holistic repair if prisons are, in Gandhian terms, to become hospitals, if penology, as modern criminologists claim, is to turn therapeutic. The hope of society from investment in the penitentiary actualises only when the inner man within each man, doing the penance of prison life, transforms his outer values and harmonises the environmental realities with the infinite potential of his imprisoned being. Meditative experiments, follow-up researches and welcome results in many countries lend optimism to techniques of broadening awareness, deepening consciousness and quietening the psychic being.

77. It is of seminal importance to note that the Tamil Nadu Prison Reforms Commission (1978-79) headed by a retired Chief Justice of the High Court of Patna, working with a team of experts, has referred with approval to successful experiments in Transcendental Meditation in the Madurai Central Prison.

Success has been claimed for this programme. It is reported that there is “reduction of anxiety and fear symptoms, greater flexibility in dealing with frustration, increased desire to care for others, and ability to interact in group situations via rational rather than purely aggressive means. Some inmates reported spontaneous reduction in clandestine use of alcohol and ganja; and even cigarette smoking was less. Prison authorities informed us that they noticed personality changes in some of these prisoners, and that they now had calm and pleasant exchanges with these inmates. Their behaviour towards others in the prison ‘and relationship with prison authorities also changed considerably”. There is a proposal to extend this treatment to short term prisoners also. This treatment may also be tried in other prisons where facilities exist. A copy of the report of the Director of the Madurai Institute of Social Work is in Appendix XI.

78. The time for prison reform has come when Indian methodology on these lines is given a chance. We do not more than indicate the signpost to Freedom From Crime and Freedom Behind Bars as a burgeoning branch of therapeutic jurisprudence. All this gains meaning where we recognise that mainstreaming prisoners into community life as willing members of a law-abiding society is the target. Rule 61 of the Standard Minimum Rules stresses this factor. Standard Minimum Rules for the Treatment of Prisoners and Related Recommendations – U. N. Dept. of Economics and Social Welfare, New Work, 1958.

61. The treatment of prisoners should emphasize not their exclusion from the community, but their continuing part in it. Community agencies should, therefore, be enlisted wherever possible to assist the staff of the institution in the task of social rehabilitation of the prisoners. There should be in connection with every institution social workers charged with the duty of maintaining and improving all desirable relations of a prisoner with his family and with valuable social agencies. Steps should be taken to safeguard, to the minimum extent compatible with the law and the sentence the rights relating to civil interests, social security rights and other social benefits of prisoners.

It follows that social resources, helpful to humane treatment and mainstreaming, should be ploughed in, senior law students screened by the Dam of reputed Law Schools may usefully be deputed to interview prisoners, subject to security and discipline. The grievances so gathered can be fed back into the procedural mechanism viz. the District Magistrate or Sessions Judge. The Delhi Law School, we indicate, should be allowed to send selected students under the leadership of a teacher not only for their own clinical education but as prisoner-grievance-gathering agency. Other Service Organisations, with good credentials, should be encouraged, after due checking for security, to play a role in the same direction. The Prisons Act does provide for rule-making and issuance of instructions which can take care of this suggestion.

Omega.

79. The omega of our judgment must take the shape of clear directives to the State and prison staff by epitomising the lengthy discussion. To clinch the issue and to spell out the precise directions is the next step.

1. We hold that Prem Chand, the prisoner, has been tortured illegally and the Superintendent cannot absolve himself from responsibility even though he may not be directly a party. Lack of vigilance is limited guilt. We do not fix the primary guilt because a criminal case is pending or in the offing. The State shall take action against the investigating police for the apparently collusive dilatoriness and deviousness we have earlier indicated. Policing the police is becoming a new ombudsmanic task of the rule of law.

2. We direct the Superintendent to ensure that no corporal punishment or personal violence on Prem Chand shall be inflicted. No irons shall be forced on the person of Prem Chand in vindictive spirit. In those rare cases of ‘dangerousness’ the rule of hearing and reasons set out by this Court in Batra’s case (supra) and elaborated earlier shall be complied with.

3. Lawyers nominated by the District Magistrate, Sessions Judge, High Court and the Supreme Court will be given all facilities for interviews, visits and confidential communication with prisoners subject to discipline and security considerations. This has roots in the visitatorial and supervisory judicial role. The lawyers so designated shall be bound to make periodical visits and record and report to the concerned court results which have relevance to legal grievances.

4. Within the next three months, Grievances Deposit Boxes shall be maintained by or under the orders of the District Magistrate and the Sessions Judge which will be opened as frequently as is deemed fit and suitable action taken on complaints made. Access to such boxes shall be accorded to all prisoners.

5. District Magistrates and Sessions Judges shall, personally or through surrogates, visit prisons in their jurisdiction and afford effective opportunities for ventilating legal grievances, shall make expeditious enquiries there into and take suitable remedial action. In appropriate cases reports shall be made to the High Court for the latter to initiate, if found necessary, habeas action.

It is significant to note the Tamil Nadu Prison Reforms Commission’s observations:

38.10. Grievance Procedure – This is a very important right of a prisoner which does not appear to have been properly considered. The rules regulating the appointment and duties of non-official visitors and official visitors to the prisons have been in force for a long time and their primary function is “to visit all parts of the jail and to see all prisoners and to hear and enquire into any complaint that any prisoner may make”. In practice, these rules have not been very effective in providing a forum for the prisoners to redress their grievances. There are a few non-official visitors who take up their duties conscientiously and listen to the grievances of the prisoners. But most of them take this appointment solely as a post of honour and are somewhat reluctant to record in the visitors’ book any grievance of a prisoner which might cause embarrassment to the prison staff. The judicial officers, viz., the Sessions Judge and the Magistrates who are also ex-officio visitors do not discharge their duties effectively. Vol. II, p. 76.

We insist that the judicial officers referred to by us shall carry out their duties and responsibilities and serve as an effective grievance machanism.

6. No solitary or punitive cell, no hard labour or dietary change as painful additive, no other punishment or denial of privileges and amenities, no transfer to other prisons with penal consequences, shall be imposed without judicial appraisal of the Sessions Judge and where such intimation, on account of emergency, is difficult, such information shall be given within two days of the action.

Conclusion.

80. What we have stated and directed constitute the mandatory part of the judgment and shall be complied with by the State. But implicit in the discussion and conclusions are certain directives for which we do not fix any specific time limit except to indicate the urgency of their implementation. We may spell out four such quasi-mandates.

1. The State shall take early steps to prepare a Hindi, a Prisoner’s Handbook and circulate copies to bring legal awareness home to the inmates. Periodical jail bulletins stating how improvements and habilitative programmes are brought into the prison may crease a fellowship which will ease tensions. A prisoners’ wall paper, which will freely ventilate grievances will also reduce stress. All these are implementary of S. 61 of the Prisons Act.

2. The State shall take steps to keep up to the Standard Minimum Rules for Treatment of Prisoners recommended by the United Nations, especially those relating to work and wages, treatment with dignity, community contact and correctional strategies. In this latter aspect the observations we have made of holistic development of personality shall be kept in view.

3. The Prisons Act needs rehabilitation and the Prison Manual total overhaul, even the Model Manual being out of focus with healing goals. A correctional-cum-orientation course is necessitous for the prison staff inculcating the constitutional values, therapeutic approaches and tension-free management.

4. The prisoners’ rights shall be protected by the court by its writ jurisdiction plus contempt power. To make this jurisdiction viable, free legal services to the prisoner programmes shall be promoted by professional organisations recognised by the Court such as for e.g. Free Legal Aid (Supreme Court) Society. The District Bar shall, we recommend, keep a cell for prisoner relief.

81. In this connection, it is heartening to note that the Delhi University, Faculty of Law, has a scheme of free legal assistance even to prisoners.

82. The Declaration of the Protection of All Persons from Torture and other cruel, Inhuman or Degrading Treatment or Punishment adopted by U. N. General Assembly (Resolution 3452 of 9 December, 1975) has relevance to our decision. In particulars

Article 8 – Any person who alleges that he has been subjected to torture or other cruel, inhuman or degrading treatment or punishment by or at the instigation of a public official shall have the right to complain to, and to have his case impartially examined by, the competent authorities of the State concerned.

Article 9.- Whereever there is reasonable ground to believe that an act of torture as defined in Article I has been committed, the competent authorities of the State concerned shall promptly proceed to an impartial investigation even if there has been no formal complaint.

Dr. Chitale has handed up to us an American Civil Liberties Union Handbook on the Right of Prisoners. It righty sets the sight of prison justice thus:(David Rudovsky Alvin J. Bronstein Edward I. Koren. p. 11).

As an institution, our penal and “correctional” system is an object failure. The conditions in America’s jails and prisons virtually ensure psychological impairment and physical deterioration for thousands of men and women each year. Reformation and rehabilitation is the rhetoric, systematic dehumanization is the reality. Public attention is directed only sporadically towards the subhuman conditions that prevail in these institutions, and usually only because the prisoners themselves have risked many more years in confinement, and in some cases even their lives, to dramatize their situation by protest.

83. The ‘central evil’ of prison life, according to this handbook, is “the unreviewed administrative discretion granted to the poorly trained personnel who deal directly with prisoners. Moreover, even those rights which are now guaranteed by the courts are often illusory for many prisoners. Implementation and enforcement of these rights rest primarily in the hands of prison officials. Litigation is costly and time-consuming, and few lawyers have volunteered their service in this area. Thus even those minimal rights which appear on paper are often in reality denied.” We conclude with the hope that the State, though preoccupied with many pressing problems, will discharge its constitutional obligation to the invisible mortals incarcerated by it and legislatively and administratively re-make a Prison Code adhering to the high values of the Preamble. Over a hundred years ago (1870). (Karl Menninger, M.D. The Crime of Punishment (New York; The Viking Press, Inc. 1969), p. 219).

“….some American prison administrators assembled to discuss their common problems and founded what is now the American Correctional Association. At the very first meeting, these remarkable men set down a justly famous “statement of Twenty-two Principles”.

Among the twenty-two were these.

“Reformation, not vindictive suffering, should be the purpose of the penal treatment of prisoners. The prisoners should be made to realize that his destiny is in his own hands;

Prison discipline should be such as to gain the will of the prisoner and conserve his self-respect;

The aim of the prison should be to make industrious free men rather than orderly and obedient prisoners.

This quote from the well-known work “The Crime of Punishment” extracted by George Ellis in his book “Inside Folsom Prison:Transcendental Meditation and TM-Sidhi Program” (ETC Publications, Palm Springs, California, p.xxi) is notable as a practicable project which will reduce the number of prisoners by raising the nature of prisoners.

84. In the package of benign changes needed in our prisons with a view to reduce tensions and raise the pace of rehabilitation, we have referred to acclimatisation of the community life and elimination of sex vice vis-a-vis prisoners we have also referred to the unscientific mixing up in practice of under-trials, young offenders and long-term convicts. This point deserves serious attention. A recent book “Rape in prison” states:(pp. 18, 33, 113).

“One of the most horrendous aspects of a jail sentence is the fact that not only are the young housed with the older offenders, but those awaiting trial share the same quarters as convicted inmates. The latter individuals have little to lose in seeking sexual gratification through assault, for they have to serve their time any way….As matters now stand, sex is unquestionably, the most pertinent issue to the inmates’ life behind bars….There is a great need to utilize the furlough system in corrections. Men with record showing good behaviour should be released for weekends at home with their families and relatives.

85. Farewell to this case is not final so far as the jailor and the police investigator are concerned. The former will stand his trial and shall receive justice. We say no more here. The investigator invites our displeasure and the Assistant Public Prosecutor, whom he consulted, makes us unhappy since we have had a perusal of the case diary. The crime alleged is simple, the material relied on in short and yet, despite repeated observations from the Bench the investigator has delayed dawdily the completion of the collection of evidence and the laying of the chargesheet. The prisoner who is the victim has been repeatedly questioned under different surroundings and divergent statements are recorded. We do not wish to state what we consider to be the obvious inference, but we are taken aback when the Assistant Public Prosecutor has given an opinion which, if we make presumptions in his favour, shows indifference and, if we make contrary inferences, makes us suspect. When offences are alleged to have taken place within the prison, there should be no tinge or trace or departmental collusion or league between the police and the prison staff. We make these minimal observations so that the State may be alerted for appropriate action. Surely, the conduct of the prosecution cannot be entrusted to one who has condemned it in advance.

86. We allow the petition and direct a writ to issue, including the six mandates and further order that a copy of it be sent for suitable action to the Ministry of Home Affairs and to all the State Governments since Prison Justice has pervasive relevance.

87. Pathak, J—I have read the judgment prepared by my learned brother. For my part, I think it sufficient to endorse the following finding and direction detailed towards the end of the judgment:

(1) The prisoner, Prem Chand, has been tortured while in custody in the Tihar Jail. As a criminal case is in the offing or may be pending, it is not necessary in this proceeding to decide who is the person responsible for inflicting the torture.

(2) The Superintendent of the Jail is directed to ensure that no punishment or personal violance is inflicted on Prem Chand by reason of the complaint made in regard to the torture visited on.

88. Besides this, I am in general agreement with my learned brother on the pressing need for prison reform and the expeditious provisions for adequate facilities enabling the prisoners, not only to be acquainted with their legal rights, but also to enable them to record their complaints and grievances, and to have confidential interviews periodically with lawyers nominated for the purpose by the District Magistrate or the Court having jurisdiction subject, of course, to considerations of prison discipline and security. It is imperative that District Magistrates and Sessions Judges should visit the prisons in their jurisdiction and afford effective opportunity to the prisoners for ventilating their grievances and, where the matter lies within their powers, to make expeditious enquiry therein and take suitable remedial action. It is also necessary that the Sessions Judge should be informed by the jail authorities of any punitive action taken against a prisoner within two days of such action. A statement by the Sessions Judge in regard to his visits, enquiries made and action taken thereon shall be submitted periodically to the High Court to acquaint it with the conditions prevailing in the prisons within the jurisdiction of the High Court.

Penal Code, 1860—Section 303—Unconstitutionality—Effect of—Murder committed by life convict during PAROLE—Murder committed within a year of earlier murder—Due to unconstitutionality of Section 303 conviction treated as under Section 302—In view of cruel conduct sentence of life for subsequent conviction directed to commence after the completion of earlier sentence and not concurrently.

Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as a result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

Judgement

Tulzapurkar, J—The only point raised by counsel for the appellant in this appeal relates to the question of sentence. The appellant on conviction under S. 303, I.P.C. has been sentenced to death Counsel has contended that in view of this Court’s decision in Mithu v. State of Punjab, (1983) 2 SCC 277. S. 303. I.P.C. has been held to be unconstitutional and the appellant’s case in so far as the sentence is concerned will have to be regarded as any other case falling under S. 302, I.P.C. Secondly, counsel has urged that the instant case does not fall within the category of rarest of the rare cases so as to attract extreme penalty of death. Thirdly, counsel has brought to our notice that Brahmi, a co-accused along with the appellant both of whom were involved in the incident in which 32 injuries came to be inflicted to the deceased Ashok Kumar alias Shoki has been awarded life imprisonment and as regards the circumstances concerning the assault on Ashok Kumar the case of the appellant is not distinguishable from that of Brahmi and, therefore, the appellant deserves to be awarded lesser punishment, namely, imprisonment for life.

2. After hearing counsel on both the sides and after considering the facts and circumstances relating to the offence in question we are inclined to agree with the submission of counsel for the appellant that the appellant should be awarded the lesser punishment. The only manner in which the counsel for the prosecution sought to distinguished the case of the appellant from that of his co-accused. Brahmi was that whereas Brahmi was the first offender the appellant had been convicted earlier under Sec. 302 I.P.C. and secondly the appellant had committed the offence in question when he was out on PAROLE while serving life imprisonment under his first conviction which is reprehensible as during the PAROLE he should have behaved like a law-abiding citizen. In our view these two aspects in the facts and the circumstances of this case are not sufficient to take a different view in the matter of sentence qua the appellant. Both the accused were actuated to commit the crime in question with identical motive of vendetta and revenge and both have behaved in a cruel manner in inflicting as many as 32 injuries with knives on the deceased who died immediately as result of the assault on him. In all the circumstances of the case, we feel that life imprisonment would be the proper sentence that should be imposed upon the appellant. We accordingly reduce the sentence of death imposed upon him and sentence him to suffer rigorous imprisonment for life. However, since the present murder was committed by him within a span of one year of his earlier conviction and that too when he was released on PAROLE we are clearly of the view that the instant sentence of imprisonment for life awarded to him should not run concurrently with his earlier sentence of life imprisonment. We, therefore, direct that in case any remission or commutation in respect of his earlier sentence is granted to him the present sentence should commence thereafter.

3. The appeal is dismissed subject to the commutation of death sentence as indicated above.

PAROLE—Effect on period of detention—PAROLE granted by Supreme Court—The period of PAROLE is to be excluded from the period of detention as the Court has no power to abridge or enlarge the period of detention.

The Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the court is to quash the order in case it is found to be illegal. That being so, it would not be open to the Court to reduce the period of detention by admitting the detenu on PAROLE. What in a given situation should be the sufficient period for a person to be detained for the purposes of the Act is one for the subjective satisfaction of the detaining authority.

The key to the interpretation of Section 10 of the COFEPOSA Act is in the words ‘may be detained’. The subsequent words ‘from the date of detention’ which follows the words ‘maximum period of one year’ merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under Section 9. There is no justifiable reason why the word ‘detain’ should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p. 531, the word ‘detain’ means “to keep in confinement or custody”. Webster’s Comprehensive Dictionary, International Edition at p. 349 gives the meaning as “to hold in custody”. The purpose and object of Section 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may beheld in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on PAROLE cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. PAROLE brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of PAROLE, detention as contemplated by the Act is interrupted when release on PAROLE is obtained. The position would be well met by the appropriate answer to the question “how long has the detenu been in actual custody pursuant to the order?” According to its plain construction, the purpose and object of Section 10 is to prescribe not only for the maximum period but also the method by which the period is to be computed. The computation has to commence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of PAROLE, the detention would not continue when PAROLE operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be counted by putting the different periods of actual detention together. We see no force in Shri Jethamalani’s submission that the period during which the detenu was on PAROLE has to be taken into consideration in computing the maximum period of detention authorised by Section 10 of the Act.

Cofeposa Act, 1974—Section 10—Period of detention—PAROLE granted by Supreme Court—The period of PAROLE is to be excluded from the period of detention as the court has no power to abridge or enlarge the period of detention.

Preventive detention—PAROLE—Effect on period of detention—PAROLE granted by Supreme Court—The period of PAROLE is to be excluded from the period of detention as the Court has no power to abridge or enlarge the period of detention.

Sen, J—By this petition under Art. 32 of the Constitution, the petitioner Smt. Poonam Lata has asked for the issue of a writ of habeas corpus for the release of her husband, Shital Kumar who has been detained by an order passed by the Additional Secretary to the Government of India, Ministry of Finance, Department of Revenue, date February 28, 1986, made under S. 3(1) of Conservation of Foreign Exchange and Prevention of Smuggling. Activities Act, 1974, (hereinafter referred to as the ‘Act’), on being satisfied that it was necessary to detain him “with a view to preventing him from dealing in smuggled goods”.

2. Put very briefly, the essential facts are these. The Directorate of Enforcement, New Delhi, gathered intelligence over a period of time before making of the impugned order of detention which revealed that the detenu was engaged in receiving smuggled gold from across the Indo-Nepal Border and was making payments in foreign currency and remitting the sale proceeds of such smuggled gold out of the country in the shape of U. S. Dollars with the help of carriers. On February 26, 1986, the Directorate received information that the three carriers, namely, Ram Deo Thakur, Shyam Thakur and Bhushan Thakur would be leaving under the assumed names of Dalip, Mukesh and Rajesh respectively by 154 Dn. Jayanti Janta Express leaving New Delhi Railway Station at 6.45 p.m. Accordingly, the officers of the Delhi Zone of the Directorate mounted surveillance at Platform No. 5 of the Railway Station from which the train was to steam off. The said carriers were detrained and upon search of their baggage, the officers recovered $ 29,750 and ` 1,500/- from Ram Deo Thakur alias Dalip, $ 28,900 and ` 650/- from Shyam Thakur alias Mukesh and $ 20,000 and ` 1,000/- from Bhushan Thakur alias Rajesh, The same were seized under S. 110(1) of the Customs Act, 1962. The total value of the seized foreign currency was equivalent to ` 10,25,000/- in round figure. During interrogation by the officers under S. 108 of the Customs Act, these persons stated that the seized foreign currency totalling $ 78,650 had been paid by the detenu towards the price of 48 gold biscuits of foreign origin brought by them from Darbhanga to New Delhi and made over to him and accordingly the detenu was taken into custody on February 27, 1986. He too made a statement under S. 108 of the Act confessing that he was dealing in smuggled gold brought across the Indo-Nepal Border and has been remitting the price of such gold in U.S. dollars through different carriers.

3. On February 28, 1986, the detenu was served with the impugned order of detention along with the grounds thereof and copies of the relevant documents relied upon in the ground. On March 25, 1986, the detenu submitted a representation under S. 8(b) of the Act and the detaining authority by its order of April 4, 1986 rejected the same. On April 12, 1986, the detenu made a representation to the Advisory Board through the Superintendent of the Central Jail, Tihar. The representation together with comments of the detaining authority and the relevant documents were forwarded by the Ministry of Finance, Department of Revenue to the Advisory Board. On the same day the detenu appears to have made a representation to the Central Government and it was received in the Ministry of Finance on April 24, 1986. The Minister of State for Finance rejected the said representation on April 29, 1986 and the detenu was informed about it the following day. The Advisory Board had its sittings on April 28 and 29, 1986, and came to the conclusion that there was sufficient cause for the detention and sent its report on May 8, 1986. The Minister considered the report of the Advisory Board and confirmed the order of detention on May 14,1986 and the Central Government’s order of confirmation was duly communicated on May 26, 1986.

4. The representation of the detenu was still before the Advisory Board when the petitioner moved this Court under Art. 32 of the Constitution on April 23, 1986. On April 29, 1986, notice was ordered by the Court returnable on May 3, 1986, and it directed that the matter may be placed before the Vacation Judge on May 15, 1986. On that date, the learned Vacation Judge made an order for the release of the detenu on PAROLE in the following terms:-

“The detenu is released on PAROLE until further orders on the condition that he will report to the Directorate of Revenue Intelligence, New Delhi every day and the Directorate will be at liberty to ask him to explain his conduct during this time.

Reply affidavit may be filed within two weeks. The matter will be listed two weeks after re-opening of the Court after summer vacation.

In the meantime, the respondents will be at liberty to make an application for the revocation of the PAROLE if any misconduct or any other activity comes to their notice which requires the revocation of the PAROLE.”

5. Notwithstanding the order of the learned Vacation Judge that the matter should be listed within two weeks after the re-opening of the Court after the long-vacation – it should have been some time in early August of 1986 – the case was not listed till January 14, 1987. The respondents also took no steps to apply for early listing of the matter. On January 14, 1987, a prayer was made by the learned counsel appearing for the Union of India seeking two weeks’ time to file an additional affidavit and the case was ordered to be listed on March 3, 1987. During all these months, the detenu has been out of jail.

6. Indisputably the detention was for one year. When the matter came up for hearing on the 3rd of March, 1987, Shri Jethmalani, learned counsel for the petitioner confined his submissions to only one aspect, namely, that the period of PAROLE i.e. from May 15, 1986 till February 28, 1987, could not be added to the period of detention specified in the impugned order under sub-s. (1) of S. 3 of the Act and the period of one year from the date of detention having expired on February 26, 1987, the impugned order had lapsed and the detenu became entitled to be freed from the shackles of the order of detention. According to the learned counsel, S. 10 of the Act prescribes the maximum period of detention to be one year or two years, as the case may be, from the date of detention or the specified period, whichever expires earlier. Admittedly in respect of the detenu no declaration under S. 9 of the Act has been made and, therefore, the maximum period of detention so far as he is concerned is one year and it has to be reckoned as prescribed under S. 10 of the Act. That section indicates not only the starting point but also the outer limit. In other words, the argument is that once the detenu is taken into custody under the Act pursuant to an order of detention, the running of time would not be arrested merely because the Court directs release of the detenu on PAROLE.

7. Shri Jethmalani drew a distinction between ‘bail’ and ‘PAROLE’; he contended that preventive detention was not a sentence by way of punishment and, therefore, the concept of serving out which pertains to punitive jurisprudence cannot be imported into the realm of preventive detention. According to him, the grant of PAROLE to a detenu amounts to a provisional release from confinement; yet the detenu continues to be under judicial detention; release from jail custody subject to restrictions imposed on free and unfettered movement transfers the detenu to judicial custody. Since there is no provision to authorise interruption of running of the period of detention, release on PAROLE does not bring about any change in the situation. It has further been argued that when the Court entertains a writ petition for grant of habeas corpus and issues a rule nisi, the detenu is deemed to have come into judicial custody and the effect of grant of PAROLE does not terminate such custody but merely allows greater freedom of movement to the detenu. Conditions imposed on the detenu during PAROLE impinge upon his freedom and liberty; therefore, the period during which a detenu is released on PAROLE cannot be taken as a period during which the detention is not operative. Shri Jethmalani placed reliance on the ratio of the Privy Council decision in Jairam Das v. Emperor, AIR 1945 PC 94 to contend that but for the special provision contained in sub-sec. (3) of S. 426 of the old Criminal P.C., 1898 (Corresponding to S. 389(4) of the Code of 1973) the power of the Court to grant bail to a convicted person or accused would not include a power to exclude the period of bail from the term of the sentence. The same principle ought to apply in the case of release of a detenu on bail or PAROLE and the Court therefore cannot on general principles add the period of bail or PAROLE to the period of detention. In the absence of any provision regarding the grant of PAROLE and the computation of the period thereof and in view of the special provisions contained regarding commencement the computation of the period of detention of one year, the period of PAROLE cannot be deducted while computing the period of one year of detention. The learned counsel also relied upon the direction made by a Bench of three Judges in the case of Amritlal Channumal Jain etc. v. State of Gujarat and others (Writ Petitions Nos. 1342-43, 1345-48 and 1362/82 and No. 162/83 dated July 10, 1985) where this Court directed that the period during which a detenu was on PAROLE should be taken into account while calculating the total period of detention. According to learned counsel the direction in Amritlal Channumal Jain’s case was given after a Bench of two Judges in Harish Mackijani v. State of U.P. held on June 11, 1985, that the period of PAROLE cannot be counted towards the period of detention. Shri Jethmalani has submitted that in view of the direction of the larger Bench of this Court, the ratio laid down in Amritlal Channumal Jain’s case (supra) has to prevail and must be taken as binding on us.

8. There is no denying the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of PAROLE is essentially an executive function and instances of release of detenus on PAROLE were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on PAROLE on humanitarian considerations. Historically ‘PAROLE’ is a concept known to military law and denotes release of a prisoner of war on promise to return. PAROLE has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of PAROLE into the penal system, all fixed-term sentences of imprisonment of above 18 months are subject to release on licence, that is, PAROLE after a third of the period of sentence has been served. In those countries, PAROLE is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement but is deemed to be a part of the imprisonment. Release on PAROLE is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. PAROLE is thus a grant of partial liberty or lessening of restrictions to a convict prisoner, but release on PAROLE does not change the status of the prisoner. Rules are framed providing supervision by PAROLE authorities of the convicts released on PAROLE and in case of failure to perform the promise, the convict released on PAROLE is directed to surrender to custody. (See:The Oxford Companion to Law, edited by Walker, 1980 Edn., p. 931, Black’s Law Dictionary, 5th Edn., p. 1006, Jowitt’s Dictionary of English Law, 2nd Edn., Vol. 2, p. 1320, Kenny’s Outlines of Criminal Law, 17th Edn., pp. 574-76. The English Sentencing System by Sir Rupert Cross at pages 31-34,87 et. seq., American Jurisprudence, 2nd Edn., Vol. 59, pp. 53-61, Corpus Juris Secundum, Vol. 67, Probation and PAROLE, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that PAROLE is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of misbehaviour.

9. There is abundance of authority that High Courts in exercise of their jurisdiction under Art. 226 of the Constitution do not release a detenu on bail or PAROLE. There is no reason why a different view should be taken in regard to exercise of jurisdiction under Art. 32 of the Constitution particularly when the power to grant relief to a detenu in such proceedings is exercisable on very narrow and limited grounds. In State of Bihar v. Rambalak Singh, (1966) 3 SCR 344 a Constitution Bench laid down that the release of a detenu placed under detention under R. 30 of the Defence of India Rules, 1962, on bail pending the hearing of a petition for grant of a writ of habeas corpus was an improper exercise of jurisdiction. It was observed in that case that if the High Court was of the view that prima facie the impugned order of detention was patently illegal in that there was a serious defect in the order of detention which would justify the release of the detenu, the proper and more sensible and reasonable course would invariably be to expedite the hearing of the writ petition and deal with the merits without any delay rather than direct release of the detenu on bail. Again, in State of Uttar Pradesh v. Jairam, (1982) 1 SCC 176, a three Judges Bench speaking through Chandrachud, C. J., referred to Rambalak Singh’s case and set aside the order passed by the learned single Judge of the High Court admitting the detenu to bail on the ground that it was an improper exercise of jurisdiction. As to grant of PAROLE, it is worthy of note that in none of the cases this Court made a direction under Art. 32 of the Constitution for grant of PAROLE to the detenu but left it to the executive to consider whether it should make an order in terms of the relevant provision for temporary release of the person detained as under S. 12 of the COFEPOSA, in the facts and circumstances of a particular case. In Samir Chatterjee v. State of West Bengal, (1975) 1 SCC 801, the Court set aside the order of the Calcutta High Court releasing on PAROLE a person detained under S. 3(1) of the Maintenance of Internal Security Act. 1971 and viewed with disfavour the observations made by the High Court that ‘it was not often that the State Government lost sight of S. 15 of the Act providing for temporary release in such situations’ as in its view’ long term preventive detention can be self-defeating or criminally counter-productive’ and that ‘it was fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the PAROLE power under S. 15’. Alagiriswamy, J. speaking for the Court, said that there was no occasion for the High Court to have made these observations, and added :-

“We fail to see that these observations lay down any principle of law. Section 15 merely confers a power on the Government. The power and duty of this Court is to decide cases coming before it according to law. In so doing it may take various considerations into account. But to advise the Government as to how they should exercise their functions or powers conferred on them by statute is not one of this Court’s functions. Where the Court is able to give effect to its view in the form of a valid and binding order that is a different matter. Furthermore, S. 15 deals with release on PAROLE and there is nothing to show that the petitioner applied for to be released on PAROLE for any specific purpose. As far as we are able to see, release on PAROLE is made only on the request of the party and for a specific purpose.”

In Babulal Das v. State of West Bengal, (1975) 3 SCR 193, Krishna Iyer, J. however struck a discordant note and adopted the observations made by the Calcutta High Court and observed :-

“It is fair that persons kept incarcerated and embittered without trial should be given some chance to reform themselves by reasonable recourse to the PAROLE power under S. 15. Calculated risks by release for short periods may, perhaps, be a social gain, the beneficent jurisdiction being wisely exercised.”

The learned Judge then said :-

“It is appropriate for a democratic Government not merely to confine preventive detention to serious cases but also to review periodically the need for the continuance of the incarceration. The rule of law and public conscience must be respected to the maximum extent risk-taking permits, and it is hoped that the petitioner and others like him will not languish in prison cells for a day longer than the administration thinks is absolutely necessary for the critical safety of society.”

10. Section 10 of the Act provides that the maximum period for which any person may be detained in pursuance of an order of detention to which provisions of S. 9 do not apply shall be for a period of one year from the date of detention or the specified period, whichever expires earlier. The key to the interpretation of S. 10 of the Act is in the words ‘may be detained’. The subsequent words ‘from the date of detention’ which follow the words ‘maximum period of one year’ merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under S. 9. There is no justifiable reason why the word ‘detain’ should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p. 531, the word ‘detain’ means “to keep in confinement or custody”. Webster’s Comprehensive Dictionary, International Edition at page No. 349 gives the meaning as “to hold in custody”. The purpose and object of S. 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on PAROLE cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. PAROLE brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of PAROLE, detention as contemplated by the Act is interrupted when release on PAROLE is obtained. The position would be well met by the appropriate answer to the question “how long has the detenu been in actual custody pursuant to the order ?” According to its plain construction, the purpose and object of S. 10 is to prescribe not only for the maximum period but also the method by which the period is to be computed. The computation has to commence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of PAROLE, the detention would not continue when PAROLE operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be counted by putting the different periods of actual detention together. We see no force in Shri Jethmalani’s submission that the period during which the detenu was on PAROLE has to be taken into consideration in computing the maximum period of detention authorised by S. 10 of the Act.

11. It is pertinent to observe that the Court has no power to substitute the period of detention either by abridging or enlarging it. The only power that is available to the court is to quash the order in case it is found to be illegal. That being so, it would not be open to the Court to reduce the period of detention by admitting the detenu on PAROLE. What in a given situation should be the sufficient period for a person to be detained for the purposes of the Act is one for the subjective satisfaction of the detaining authority. Preventive detention jurisprudence in this regard is very different from regular conviction followed by sentence that an accused is to suffer. Whether it be under Art. 226 or Art. 32 of the Constitution, the Court would, therefore, have no jurisdiction either under the Act or under the general principles of law or in exercise of extraordinary jurisdiction to deal with the duration of the period of detention

12. Parliament has authorised the detention of person under the COFEPOSA to serve two purposes:-

“(1) To prevent the person concerned from engaging himself in an activity prejudicial to the conservation of foregin exchange and also preventing him from smuggling activities and thereby to render him immobile for the period considered necessary by the detaining authority so that during that period the society is protected from such prejudicial activities on the part of the detenu. And

(2) In order to break the links between the person so engaged and the source of such activity and from his associates engaged in that activity or to break the continuity of such prejudicial activities so that it would become difficult, if not impossible, for him to resume the activities.”

Release of a detenu on PAROLE after an order of detention has been made and the detenu lodged in custody for achieving one or the other of the aforesaid legislative objects is thus contrary to the purpose of the statute. There is a statutory prohibition against release of a detenu during the period of detention in sub-sec. (6) of S. 12 of the Act. That sub-section which was inserted by Amending Act 39 of 1975 with effect from 1-7-1975 reads:-

“Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise.”

Sub-section (6) puts a statutory bar to the release of the detenu during the period of detention in a manner otherwise than the one provided in S. 12. Section 12 authorises either the Central Government or the State Government to temporarily release the detenu on such terms and conditions as the appropriate Government considers necessary to impose. The scheme of S. 12, unless release by the appropriate Government is taken to be one of PAROLE, keeps away PAROLE from the, subject of preventive detention. At any rate, it is the appropriate Government and not the Court which deals with a case of temporary release of the detenu. Since the Act authorises the appropriate Government to make an order of temporary release, invariably the detenu seeking to have the benefit of temporary relief must go to the appropriate Government first. It may be that in a given case the Court may be required to consider the propriety of an adverse order by the Government in exercise of the jurisdiction under S. 12 of the Act. On the principle that exercise of administrative jurisdiction is open to judicial review by the superior court, the High Court under Art. 226 or this Court under Art. 32 may be called upon in a suitable case to examine the legality and propriety of the governmental action. There is no scope for entertaining an application for PAROLE by the Court straightway. The legislative scheme, keeping the purpose of the statute and the manner of its fulfilment provided thereunder, would not justify entertaining of an application for release of a detenu on PAROLE. Since in our view release on PAROLE is not a matter of judicial determination, apparently no provision as contained in the Code of Criminal Procedure relating to the computation of the period of bail was thought necessary in the Act. But we would like to point out to the Government the desirability of inserting a provision like sub-s. (4) of S. 389 of the Code of Criminal Procedure, 1973 that when an action is taken under S. 12 of the Act and the appropriate Government makes a temporary release order, the period of such temporary release whether on bail or PAROLE has to be excluded in computing the period of detention. Either the statute or the rules made thereunder should provide for this eventuality.

13. In the premises. it must accordingly be held that the period of PAROLE has to be excluded in reckoning the period of detention under sub-sec. (1) of S. 3 of the Act. We find it difficult from the observations made by the three-Judge Bench in Amritlal Channumal Jain’s case to infer a direction by this Court that the period of PAROLE shall not be added to the period of detention. The words used ‘shall be taken into account’ are susceptible of an interpretation to the contrary. We find that an order made by a bench of two-Judges of this Court in Harish Mackijani’s case (supra) unequivocally laid down that the period of PAROLE cannot be counted towards the period of detention. This accords with the view taken by this Court in a bench of two-Judges in State of Gujarat v. Adam Kasam Bhaya, (1982) 1 SCR 740 and State of Gujarat v. Ismail Juma, (1982) 1 SCR 1014. In view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain’s case (supra) is capable of another construction as well, we do not find Shri Jethmalani’s contention on this score as acceptable.

14. For these reasons, the only contention advanced by Shri Jethmalani in course of the hearing, namely, that the period of PAROLE from May 15, 1986 to February 28, 1987 could not be added to the maximum period of detention of the detenu Shital Kumar for one year as specified in the impugned order of detention passed under sub-s. (1) of S. 3 of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, must fail. The writ petition is accordingly dismissed. There shall be no order as to costs. We direct that the petitioner shall surrender to custody to undergo remaining period of detention. We give the detenu ten days’ time to comply with this direction failing which a non-bailable warrant for his arrest shall issue.

Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

The principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under Section 302, IPC to imprisonment for life.

Penal Code, 1860—Section 302—Sentence—Death sentence—Accused while serving sentence of life imprisonment committed another murder while released on PAROLE—Felonious propensity of offender cannot be made sole basis of death sentence—Case not falling into category of rarest of rare cases—Death sentence committed to life imprisonment.

Counsel for the Parties:

Satyapal Khushal Chand, Advocate, for Appellant

Prem Malhotra, Advocate (NP), for Respondent.

order

1. Consequent upon dismissal of his appeal by the High Court Krishan, the appellant herein, stands convicted under S. 302, IPC and sentenced to death for committing the murder of Ranbir, his brother-in-law, on October 23, 1994 inside District Jail, Sonepat, where the former was undergoing a sentence of imprisonment for life and the latter was an under-trial prisoner.

2. According to the prosecution case on the fateful day at or about 10-45 a.m. when the deceased was getting himself shaved by Ram Phal (P.W. 3), who is a barber by profession and at the material time was serving a sentence, in Barrack No. 3 of the Jail, the appellant came there with kassi (spade) in his hand and inflicted two successive blows on the head of Ranbir, with whom he had a property dispute as a result of which he fell down and started bleeding profusely. Ram Phal raised an alarm which attracted the attention of Head Constable Som Nath, who was on duty nearby. Ram Phal and Som Nath chased the appellant who had fled away in the meantime with the kassi, and nabbed him with great difficulty. They snatched the kassi from him and put him inside Barrack No. 4. They then went to Shri Ashok Kumar (P.W. 4), Assistant Superintendent of the Jail and narrated the incident and also handed over the kassi to him. Shri Kumar then arranged a vehicle to shift Ranbir to the General Hospital, Sonepat. There Ranbir was examined by Dr. R. R. Mittal (P.W. 1) and he found the following:-

“1. Incised wound in front of the left pinna extending upto mid-line of vault of skull which was 12 x 1 cms. x bone deep. Fresh bleeding was present and brain matter was coming out of the injury, and

2. Incised wound on the skull from its middle to parieto-temporal region measuring 10 x 1 cms. x bone deep with fresh bleeding. Brain matter was coming out of the injury. X-ray was advised in respect of skull and surgical opinion was sought.”

3. According to the doctor, both the aforesaid injuries could be caused by a sharp-edged weapon like kassi. The doctor sent a ruqa (Ext. PB) to In-charge, Police Post General Hospital, Sonepat, at 12 noon.

4. On receipt of a telephonic message from the city police station, S.I. Ami Singh (P.W. 8), who was then posted as In-charge Police Post, Gohama Road, Sonepat, first went to General Hospital, Sonepat, where he came to learn that Ranbir Singh had since been referred to Medical College and Hospital, Rohtak. Thereafter, he came to District Jail, Sonepat, where Chander Singh (P.W. 7) made a statement (Ext. PG) regarding the incident. He forwarded the said statement for registration of a case and took up investigation. Thereafter, S.I. Ami Singh recorded the statements of Ram Phal, Som Nath and Ashok Kumar under S. 161, Cr. P.C. He took possession of the kassi (Ext. P1) from Ashok Kumar and seized some blood stained earth from the place of incident. He also prepared a rough site plan (Ext. PI).

5. In the night intervening 26/27th of October, 1994 the Investigating Officer received a message from Medical College and Hospital, Rohtak that Ranbir Singh had since died. On receipt of this message, S.I. Ami Singh reached there along with H.C. Dhara Singh and Constable Suresh Kumar and conducted inquest proceedings (Ext. PX). He then sent the dead body for post-mortem examination. Post-mortem examination was conducted by Dr. A. R. Sharma (P.W. 10) in Civil Hospital, Rohtak and he noted two stitched wounds on his person corresponding to the medico-legal report. According to the doctor, the injuries were ante-mortem and sufficient to cause death in the ordinary course of nature.

6. The appellant who was already lodged in District Jail, Sonepat as a convict in some other murder case was put under arrest by S.I. Ami Singh. On 23-10-1994, S.I. Ami singh had deposited the Kassi Ext. P. 1 duly sealed in a packet and another packet containing blood stained earth with the Moharrir Malkhana Randhir Singh and on 16-11-1994 the said Head Constable Randhir singh handed over the same duly intact to the said Constable Vinod Kumar for being delivered at the Forensic Science Laboratory (F.S.L.) and the said constable delivered the same there duly intact on the same day. Subsequently, report from the F.S.L., Madhuban vide Ext. PP was received to the effect that there was human blood on the kassi (Ext. P. 1) and the blood stained earth lifted from the spot. On completion of investigation the police submitted charge-sheet against the appellant and in due course the case was committed to the Court of Session.

7. The appellant pleaded not guilty to the charge levelled against him and stated that he had been falsely implicated. He took the stand that on the date of the incident he was on duty at the Sabzi Panja in Jail and came to the Barrack on hearing the alarm of whistles issued by the Lambardar on duty and they came to know that Ranbir was lying injured. He further stated that on seeing him injured, he started dressing him and while he was still dressing him, he himself became unconscious and thereafter regained consciousness in the hospital.

8. To sustain the charge levelled against the appellant the prosecution principally relied upon the ocular version of Ram Phal (P.W. 3) and Chander Singh (P.W. 7), the warden of the jail. Both the learned Courts below found that the above two witnesses were natural, probable and independent witnesses and there was no reason to disbelieve them. As their evidence stood amply corroborated by the medical evidence and the First Information Report, which was promptly lodged, the Courts below recorded their respective findings against the appellant.

9. We have for ourselves perused the entire evidence on record and see no reason to interfere with the concurrent findings recorded by the learned Courts below as they have been arrived at on a detailed and proper appraisal of the evidence and are based on cogent and convincing reasons. The conviction of the appellant under S. 302, IPC must, therefore, be upheld.

10. Coming now to the sentence we find that the principal reason which weighed with the Courts below to hold that the extreme penalty of death was called for, was that earlier the appellant had committed a murder for which he was serving the sentence of life imprisonment at the material time and that he committed another murder while he was released on PAROLE. Undoubtedly, felonious propensity of an offender is a factor which requires consideration while dealing with the question of imposition of the sentence of death but that cannot be made the sole basis for such sentence as all other factors relating to the commission of the crime including motives, manner and magnitude have also to be taken into consideration. Taking an overall view of the attending facts and circumstances of the instant case we do not feel that this is one of the rarest of the rare cases where the appellant should be sentenced to death. We, therefore, commute the sentence of death imposed upon the appellant for his conviction under S. 302, IPC to imprisonment for life, but maintain the sentence of fine of ` 5,000/- and the sentence to be undergone in default of payment thereof. The appeal is thus disposed of.

PAROLE—Can be granted to detenu by way of temporary release—Detenu is required to approach Government for grant of PAROLE—In case of denial of PAROLE to detenu—High Court under Art. 226 and Supreme Court under Art. 32, 136 and 142 can direct temporary release of detenu.

PAROLE, stricto sensu may be granted by way of a temporary release as contemplated by Section 12(1) or 12(1-A) of COFEPOSA by the Government or its functionaries, in accordance with the PAROLE Rules or administrative instructions, framed by the Government which are administrative in character. For securing release on PAROLE, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envisaged by Section 12(2) etc. and the grant of PAROLE shall be subject to those terms and conditions.

The Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on PAROLE, in cases covered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in Clause (6) of Section 12. The bar of judicial intervention, to direct temporary release of a detenu would not, however, affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Articles 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on PAROLE for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which PAROLE is to be availed of by the detenu.

PAROLE—Effect on period of detention—Maximum period of detention—It has to be including in period of PAROLE, unless terms of grant of PAROLE or rules or instructions prescribe otherwise.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 10—Preventive detention—Period of detention—Computation of—It has to be computed from date of actual detention and not from date of order of detention.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Section 10—Preventive detention—Quashing by High Court—Order of High Court set aside by Supreme Court—Detenu need not be sent to jail for remaining period of detention after long lapse of time.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 10, 12—Preventive detention—Maximum period of detention—It has to be including in period of PAROLE, unless terms of grant of PAROLE or rules or instructions prescribe otherwise.

Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974—Sections 12(1) and 12(1-A)—PAROLE—Can be granted to detenu by way of temporary release—Detenu is required to approach Government for grant of PAROLE—In case of denial of PAROLE to detenu—High Court under Art. 226 and Supreme Court under Art. 32, 136 and 142 can direct temporary release of detenu.

Dr. A.S. ANAND, C.J.I—I have had the advantage of going through the judgment of our learned brother Nanavati, J. and I agree that these petitions should be allowed. Long period has lapsed since the detenus in each of these cases were released and no material has been placed before us by the detaining authority to warrant further detention of the detenus at this distant point of time. The detenus, in my opinion, need not be directed to undergo “the remaining period of detention” because the nexus between detention and object of detention would appear to have been snapped during this period of about ten years, during which period detenus were free. In fairness to the learned Attorney-General it must be stated that he fairly conceded this position. I find myself unable to fully subscribe to the view of brother Nanavati, J. relating to the treatment of the period during which a detenu is free as a result of an erroneous order of the High Court which is set aside on appeal. I would also like to give my own reasons in support of the answer to the other questions involved in these cases.

2. It would be appropriate to first refer to the order of reference made by a 2-Judge Bench on 1st of May, 1989 (reported in AIR 1989 SC 1529. That order reads thus:

“This writ petition under Article 32 of the Constitution and the Special Leave Petition under Article 136 of the Constitution arises out of proceedings for preventive detention taken under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. One of the substantial points which arises in these cases is whether the period of detention is a fixed period running from the date specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of PAROLE granted to the detenu. In case where the High Court allows a habeas corpus petition and directs the detenu to be released and in consequence the detenu is set free, and thereafter an appeal filed in this Court results in the setting aside of the order of the High Court, is it open to this Court to direct the arrest and detention of the detenu if meanwhile the original period of detention intended in the detention order has expired? Four decisions of this Court have been placed before us in support of the contention that the period of detention intended by the detention order is not a fixed period but can be correspondingly extended if the detenu absconds before he can be apprehended and detained or the period of detention is interrupted by an erroneous judgment of a High Court and the detenu is set free. Those cases are State of Gujarat v. Adam Kasam Bhaya (1982) 1 SCR 740, State of Gujarat v. Ismail Juma, (1982) 1 SCR 1014; Smt. Poonam Lata v. M.L. Wadhawan, AIR 1987 SC 1383 and Pushpadevi M. Jatia v. M.L. Wadhawan, AIR 1987 SC 1748. We find some difficulty in accepting the view taken by the learned Judges of this Court who decided those cases. It seems to us prima facie that what is important is that we are concerned with cases of preventive detention, cases where the detaining authority is required to apply its mind and decide, whether, and if so for how long, a person should be detained. It is preventive detention and not punitive detention. Preventive detention invariably runs from the date specified in the detention order. In the case of punitive detention, no date is ordinarily specified from which the detention will commence, and all that is mentioned is the period of detention. In case of preventive detention the detaining authority applies its subjective judgment to the material before it and determines what should be the period for which the detenu should be detained, that is to say, the period during which he should be denied his liberty in order to prevent him from engaging in mischief. It seems to us prima facie that one possible view can be that if PAROLE is granted the period of PAROLE should be counted within the total period of detention and not outside it. As regards the problem raised by the release of a detenu pursuant to an erroneous decision of the High Court, and the subsequent reversal of that decision by this Court, the remedy probably lies in the enactment of legislation analogous to S. 5(1) and S. 15(4) of the Administration of Justice Act, 1960 in the United Kingdom. The question is an important one affecting as it does on the one hand the need for effective measures of preventive detention and on the other the liberty of the subject and his right to freedom from detention beyond the period intended by the statute. As the matter is of great public importance, and most cases of preventive detention are bound to be affected, we refer these cases to a Bench of five Hon’ble Judges for consideration of the law on the point.”

3. From the above order of reference, essentially the substantial questions which arise for our consideration are:

Firstly, whether the period of detention is a fixed period running from the dates specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of PAROLE granted to the detenu. Secondly, in a case where the High Court allows a habeas corpus petition and directs a detenu to be released and in consequence the detenu is set free and thereafter on appeal the erroneous decision of the High Court is reversed, is it open to this Court to direct the arrest and detention of the detenu, to undergo detention for the period which fell short of the original period of detention intended in the detention order on account of the erroneous High Court order.

4. Brother Nanavati, J. has dealt with various judgments referred to in the order of reference and analysed them. I agree that the judgments in Harish Makhija v. State of U.P., (1987) 3 SCC 432; Poonam Lata (Supra) and Pushpadevi (Supra) do not lay down the correct law because the propositions of law laid down in those judgments, which has been extracted by brother Nanavati, J. have been very widely stated. I do not intend to deal with those judgments and would like to address myself to the questions as noticed above.

5. Section 10 of COFEPOSA prescribes not only the maximum period of detention but also the method of computation of that period and on a plain reading of the section, the period of detention is to be computed from the date of actual detention and not from the date of the order of detention. The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of the actual detention and not from the date of the order of detention. Any other interpretation would frustrate the object of an order of detention and a clever person may abscond for the entire period mentioned in the order of detention and thereby render the order of detention useless claiming on being apprehended that the period has already expired. The view expressed in Adam Kasam Bhaya’s case (supra) and Ismail Juma’s case (supra) in this behalf lays down the correct law and I adopt that reasoning and hold that the period of detention specified in the order of detention would commence not from the date of the order but from the date of actual detention. That period is the maximum period of detention. Would that period get automatically extended by any period of PAROLE granted to the detenu is the next question? I shall deal with the other observation in Adam Kasam Bhaya’s case (supra) viz. “if he has served a part of the period of detention, he will have to serve out the balance” separately, in the later part of this order.

6. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. Since, preventive detention is a form of precautionary State action, intended to prevent a person from indulging in a conduct, injurious to the society or the security of State or public order, it has been recognised as “a necessary evil” and is tolerated in a free society in the larger interest of security of State and maintenance of public order. However, the power being drastic, the restrictions placed on a person to preventively detain must, consistently with the effectiveness of detention, be minimal. In a democracy governed by the Rule of Law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. This Court, as the guardian of the Constitution, though not the only guardian, has zealously attempted to preserve and protect the liberty of a citizen. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation.

7. It would be relevant at this stage to notice the provisions of Articles 22(4)(a) and (7) of the Constitution.

Article 22(4)(a) of the Constitution provides as follows:

“22(4)(a) – an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:

Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of Clause (7).”

Clause (7) of Article 22 says:

“Clause (7) – Parliament may by law prescribe – (a) the circumstances under which, and the class or classes of ceses in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of Clause (4);

(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and

(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of Clause (4).”

8. A combined reading of Clauses (4) and (7) makes it clear that if a law made by Parliament or the State Legislature authorises the detention of a person for a period not exceeding three months, it does not have to satisfy any other constitutional requirement except that it must be within the legislative competence of the Parliament or the State Legislature, as the case may be. (Article 246, Entry 9, List I and Entry 3, List III, of Seventh Schedule). The Constitution itself permits the Parliament and the State Legislature to make law providing for detention, without trial, upto a period of three months without any safeguards but where the law seeks to provide for detention for a longer period than three months, it must comply with the constitutional safeguards which are found in sub-clauses (a) and (b) of Clause (4), though leaving it to the discretion of the detaining authority to decide what should be the maximum period of detention. Outside limit to the period of detention has, however, been laid down by the proviso which says that nothing in sub-clause (a) of Clause (4) shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under Clause (7). The question whether Parliament is itself bound to prescribe the maximum period of detention under Article 22(7)(b) of the Constitution in order that the proviso to Article 22(4)(e) might operate, is no longer res-integra. The issue was considered by a Constitution Bench of this Court in Fagu Shaw v. State of West Bengal (1974) 2 SCR 832 and authoritatively answered. Since, I respectfully agree with the answer, I need not detain myself to deal with that issue any further.

9. To answer the question whether the period of detention would stand automatically extended by any period of PAROLE granted to a detenu, we need to examine the concept and effect of PAROLE more particuarly in a preventive detention case.

10. Bail and PAROLE have different connotations in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘Bail’ is surety. In Halsbury’s Laws of England (Halsbury’s Laws of England, 4th Ed., Vol. 11, Para 166), the following observation succinctly brings out the effect of bail:

“The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody or his sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handling him over to the custody of law and he will then be imprisoned.”

11. ‘PAROLE’, however, has a different connotation than bail even though the substantial legal effect of both bail and PAROLE may be the release of a person from detention or custody. The dictionary meaning of ‘PAROLE’ is:

THE CONCISE OXFORD DICTIONARY – NEW EDITION

“The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise, a word of honour.”

BLACK’S LAW DICTIONARY – SIXTH EDITION

“Release from jail, prison or other confinement after actually serving part of sentence; conditional release from imprisonment which entitles PAROLEe to serve remainder of his term outside confines of an institution, if he satisfactorily complies with all terms and conditions provided in PAROLE order.”

According to The law Lexicon [P. Ramanatha Aiyar’s The Law Lexicon with Legal Maxims, Latin Terms and Words and Phrases; p. 1410]. ‘PAROLE’ has been defined as:

“A PAROLE is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the PAROLE.”

“A ‘PAROLE’ is not a ‘suspension of sentence,’ but is a substitution, during continuance of PAROLE, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan, C.A. Ind, 211 F. 2d 904, 906.

“A ‘PAROLE’ does not suspend or curtail the sentence originally imposed by the Court as contrasted with a ‘commutation of sentence’ which actually modifies it.”

12. In this country, there are no statutory provisions dealing with the question of grant of PAROLE. The Code of Criminal Procedure does not contain any provision for grant of PAROLE. By administrative instructions, however, rules have been framed in various States, regulating the grant of PAROLE. Thus, the action for grant of PAROLE is generally speaking an administrative action. The distinction between grant of bail and PAROLE has been clearly brought out in the judgment of this Court in State of Haryana v. Mohinder Singh JT 2000 (1) SC 629 to which one of us (Wadhwa, J.) was a party. That distinction is explicit and I respectfully agree with that distinction.

13. Thus, it is seen that ‘PAROLE’ is a form of “temporary release” from custody, which does not suspend the sentence or the period of detention, but provides conditional release from custody and changes the mode of undergoing the sentence. COFEPOSA does not contain any provision authorising the grant of PAROLE by judicial intervention. As a matter of fact, Section 12 of COFEPOSA, which enables the administration to grant temporary release of a detained person expressly lays down that the Government may direct the release of a detenu for any specified period either without conditions or upon such conditions as may be specified in the order granting PAROLE, which the PAROLEe accepts. Sub-section (6) of Section 12 lays down:

“Section 12(6) – Notwithstanding anything contained in any other law and save as otherwise provided in this section, no person against whom a detention order made under this Act is in force shall be released whether on bail or bail bond or otherwise.”

14. Section 12(6) starts with a non obstante clause and mandates that no person against whom a detention order made under COFEPOSA is in force shall be released whether on bail or bail bond or otherwise. The prohibition is significant and has a purpose to serve. Since, the object of preventive detention is to keep a person out of mischief in the interest of the security of the State or public order, judicial intervention to release the detenu during the period an order of detention is in force has to be minimal. Under Section 12(1) or 12(1-A), it is for the State to see whether the detenu should be released temporarily or not keeping in view the larger interest of the State and the requirements of detention of an individual. Terms and conditions which may be imposed while granting order of temporary release are also indicated in the other clauses of Section 12 for the guidance of the State. Clause (6) in terms prohibits the release of a detenu, during the period an order of detention is in force, ‘on bail or bail bond or otherwise.’ The expression ‘or otherwise’ would include release of the detenu even on PAROLE through judicial intervention.

15. Thus, PAROLE, stricto sensu may be granted by way of a temporary release as contemplated by Section 12(1) or 12(1-A) of COFEPOSA by the Government or its functionaries, in accordance with the PAROLE Rules or administrative instructions, framed by the Government which are administrative in character and shall be subject to the terms of the Rules or the instructions, as the case may be. For securing release on PAROLE, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envisaged by Section 12(2) etc. and the grant of PAROLE shall be subject to those terms and conditions. The Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on PAROLE, in cases covered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in Clause (6) of Section 12. Temporary release of a detenu can only be ordered by the Government or an officer subordinate to the Government, whether Central or State. I must, however, add that the bar of judicial intervention to direct temporary release of a detenu would not affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Article 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on PAROLE for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which PAROLE is to be availed of by the detenu.

16. Since, release on PAROLE is only a temporary arrangement by which a detenu is released for a temporary fixed period to meet certain situations, it does not interrupt the period of detention and, thus, needs to be counted towards the total period of detention unless the rules, instructions or terms for grant of PAROLE, prescribe otherwise. The period during which PAROLE is availed of is not aimed to extend the outer limit of the maximum period of detention indicated in the order of detention. The period during which a detenu has been out of custody on temporary release on PAROLE, unless otherwise prescribed by the order granting PAROLE, or by rules or instructions, has to be included as a part of the total period of detention because of the very nature of PAROLE. An order made under Section 12 of temporary release of a detenu on PAROLE does not bring the detention to an end for any period – it does not interrupt the period of detention – it only changes the mode of detention by restraining the movement of the detenu in accordance with the conditions prescribed in the order of PAROLE. The detenu is not a free man while out on PAROLE. Even while on PAROLE he continues to serve the sentence or undergo the period of detention in a manner different than from being in custody. He is not a free person. PAROLE does not keep the period of detention in a state of suspended animation. The period of detention keeps ticking during this period of temporary release of a detenu also because a PAROLEe remains in legal custody of the State and under the control of its agents, subject to any time, for breach of condition, to be returned to custody. Thus, cases which are covered by Section 2 of COFEPOSA, the period of temporary release would be governed by the conditions of release whether contained in the order or the rules or instructions and where the conditions do not prescribe it as a condition that the period during which the detenu is out of custody, should be excluded from the total period of detention, it should be counted towards the total period of detention for the simple reason that during the period of temporary release the detenu is deemed to be in constructive custody. In cases falling outside Section 12 if the interruption of detention is by means not authorised by law, then the period during which the detenu has been at liberty, cannot be counted towards period of detention while computing the total period of detention and that period has to be excluded while computing the period of detention. The answer to the question, therefore, is that the period of detention would not stand automatically extended by any period of PAROLE granted to the detenu unless the order of PAROLE or rules or instructions specifically indicates as a term and condition of PAROLE, to the contrary. The period during which the detenu is on PAROLE, therefore, requires to be counted towards the total period of detention.

17. Coming now to the next question and the other observations made in Adam KasamBhaya’s case (supra) viz., “if he has served a part of the period of detention, he will have to serve out the balance.”

18. The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety of factors and in particular on the question of lapse of time btween the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High Court. A detenu need not be sent back to undergo the remaining period of detention, after a long lapse of time, when even the maximum prescribed period intended in the order of detention has expired, unless there still exists a proximate temporal nexus between the period of detention prescribed when the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order and the State is able to satisfy the Court about the desirability of ‘further’ or ‘continued’ detention. Where, however, long time has not lapsed or the period of detention initially fixed in the order of detention has also not expired, the detenu may be sent back to undergo the balance period of detention. It is open to the Appellate Court, considering the facts and circumstances of each case, to decide whether the period during which the detenu was free on the basis of an erroneous order should be excluded while computing the total period of detention as indicated in the order of detention, though normally the period during which the detenu was free on the basis of such an erroneous order may not be given as a ‘set off’ against the total period of detention. The actual period of incarceration cannot, however, be permitted to exceed the maximum period of detention, as fixed in the order, as per the prescription of the statute.

19. The summary of my conclusions by way of answer to the questions posed in the earlier portion of this order are:

1. Personal liberty is one of the most cherished freedoms, perhaps more important than the other freedoms guaranteed under the Constitution. It was for this reason that the Founding Fathers enacted the safeguards in Article 22 in the Constitution so as to limit the power of the State to detain a person without trial, which may otherwise pass the test of Article 21, by humanising the harsh authority over individual liberty. In a democracy governed by the Rule of Law, the drastic power to detain a person without trial for security of the State and/or maintenance of public order, must be strictly construed. However, where individual liberty comes into conflict with an interest of the security of the State or public order, then the liberty of the individual must give way to the larger interest of the nation;

2. That Section 10 of COFEPOSA prescribes not only the maximum period of detention but also the method of computation of that period and on a plain reading of the section, the period of detention is to be computed from the date of actual detention and not from the date of the order of detention;

3. That PAROLE, stricto sensu may be granted by way of a temporary release as contemplated by Section 12(1) or 12(1-A) of COFEPOSA by the Government or its functionaries, in accordance with the PAROLE Rules or administrative instructions, framed by the Government which are administrative in character. For securing release on PAROLE, a detenu has, therefore, to approach the Government concerned or the jail authorities, who may impose conditions as envisaged by Section 12(2) etc. and the grant of PAROLE shall be subject to those terms and conditions;

4. That the Courts cannot, generally speaking, exercise the power to grant temporary release to detenus, on PAROLE, in cases covered by COFEPOSA during the period an order of detention is in force because of the express prohibition contained in Clause (6) of Section 12. The bar of judicial intervention, to direct temporary release of a detenu would not, however, affect the jurisdiction of the High Courts under Article 226 of the Constitution or of this Court under Articles 32, 136 or 142 of the Constitution to direct the temporary release of the detenu, where request of the detenu to be released on PAROLE for a specified reason and/or for a specified period, has been, in the opinion of the Court, unjustifiably refused or where in the interest of justice such an order of temporary release is required to be made. That jurisdiction, however, has to be sparingly exercised by the Court and even when it is exercised, it is appropriate that the Court leaves it to the administrative or jail authorities to prescribe the conditions and terms on which PAROLE is to be availed of by the detenu;

5. That PAROLE does not interrupt the period of detention and, thus, that period needs to be counted towards the total period of detention unless the terms for grant of PAROLE, rules or instructions, prescribe otherwise;

6. The quashing of an order of detention by the High Court brings to an end such an order and if an appeal is allowed against the order of the High Court, the question whether or not the detenu should be made to surrender to undergo the remaining period of detention, would depend upon a variety of factors and in particular on the question of lapse of time between the date of detention, the order of the High Court, and the order of this Court, setting aside the order of the High Court.

A detenu need not be sent back to undergo the remaining period of detention, after a long lapse of time, when even the maximum prescribed period intended in the order of detention has expired, unless there still exists a proximate temporal nexus between the period of detention indicated in the order by which the detenu was required to be detained and the date when the detenu is required to be detained pursuant to the appellate order and the State is able to satisfy the Court about the desirability of ‘further’ or ‘continued’ detention;

7. That, where, however, long time hasnotlapsed or the period of detention initially fixed in the order of detention has not expired, the detenu may be sent back to undergo the balance period of detention. It is open to the Appellate Court, considering the facts and circumstances of each case, to decide whether the period during which the detenu was free on the basis of an erroneous order should be excluded while computing the total period of detention as indicated in the order of detention though normally the period during which the detenu was free on the basis of such an erroneous order may not be given as a ‘set off’ against the total period of detention. The actual period of incarceration cannot, however, be permitted to exceed the maximum period of detention, as fixed in the order, as per the prescription of the statute.

20. The above is not a summary of the judgment but shall have to be read along with the judgment.

21. Consequently, the writ petitions are allowed and the special leave petition is disposed of in terms of the above order.

G.T. Nanavati, J—22. A short but a question of law of general importance that arises for consideration in this case is whether the period of detention is a fixed period running from the date specified in the detention order and ending with the expiry of that period or the period is automatically extended by any period of PAROLE granted to the detenu.

23. The Gujarat High Court allowed the writ petition of Sunil Fulchand Shah (Petitioner in S.L.P. (Cri.) No. 1492 of 1988) partly and quashed the notification under Section 9(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (for short refer to as ‘COFEPOSA Act’) but upheld the order of detention and directed that the detenu shall have to undergo detention for a period of one year from the date of his arrest in pursuance of the order of detention, excluding the period during which he was out as a result of its earlier order quashing the detention. He has, therefore, filed S.L.P. (Criminal) No. 1492 of 1988 challenging the said direction. In Writ Petition (Criminal) No. 248 of 1988 filed by him under Article 32 of the Constitution he has challenged his continued detention as illegal on the ground that the one year period which had started running from 4-7-1986, the date on which he was detained pursuant to the detention order, expired on 3-7-1987 and his detention thereafter is without any authority of law. Sanjeev Kumar Agarwal is the petitioner in Writ Petition (Criminal) No. 831 of 1990. He has challenged the order passed by the Central Government rejecting the representation made by his wife for his release on 23-7-1990 on completion of one year from the date of his detention and not to extend his detention till 20-12-1990 by adding the period for which he was on PAROLE. After hearing the writ petition and S.L.P. filed by Sunil, a three Judge Bench of this Court on 1-5-1989 ordered that as the matter is of great public importance, these cases may be referred to a Bench of five Hon’ble Judges. Two learned Judges constituting the Bench (Pathak, CJI and M.N. Venkatachallah, J) referred to the four decisions of this Court in State of Gujarat v. Adam Kasam Bhaya, (1981) 4 SCC 216; State of Gujarat v. Mohd. Ismail Jumman, (1981) 4 SCC 609; Poonam Lata v. M.L. Wadhawan, (1987) 3 SCC 347 and Pushpadevi M. Jatia v. M.L. Wadhawan, (1987) 3 SCC 367, which support the view that the period of detention intended by the detention order is not a fixed period but can be correspondingly extended if the detenu absconds before he can be apprehended and detained or the period of detention is interrupted by erroneous judgment of the High Court and the detenu is set free or the detenu is released on PAROLE. They found some difficulty in accepting that view as correct. They further observed. “it seems to us prima facie that one possible view can be that if PAROLE is granted the period of PAROLE should be counted within the total period of detention and not outside it.” The third learned Judge (L.M. Sharma, J.) agreed with the views expressed in Adam Kasam Bhaya’s case (supra) and the other three cases referred to above; yet, he also agreed that in view of the great public importance of the point involved these cases deserve to be heard by a Bench of five Hon’ble Judges. As the question raised in the writ petition filed by Sanjeev Kumar is also the same, it has been ordered to be heard with Writ Petition (Criminal) No. 248 of 1988 filed by Sunil. That is how these three cases are placed for hearing before a five Judge Bench of this Court.

24. Section 3 of the COFEPOSA Act confers power on the Central Government, State Government and their officers if specially empowered, to make an order for detention against a person engaged in certain prejudicial activities specified in that section. Section 10 prescribes the maximum period for detention. It provides that the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 do not apply, shall be one year from the date of detention and the maximum period for which any person may be detained in pursuance of any detention order to which the provisions of Section 9 apply, shall be two years from the date of detention. Section 11 of the Act confers power on the State Government and the Central Government to revoke or modify the detention order. Sub-section (2) of that Section however, provides that the revocation of a detention order shall not bar the making of another detention order under Section 3 against the same person. Section 12 authorises the Government to release the person detained for any specified period either without conditions or upon such conditions as that person accepts. The Government has the power under that section to cancel his release. The person so ordered to be released may be required to enter into a bond with sureties for the due observance of the conditions on which he is released. If the person so released fails without sufficient cause to surrender himself he becomes liable to be punished with imprisonment for a term which may extend to two years, or with fine, or with both. Notwithstanding anything contained in any other law, Section 12 prohibits release of a person against whom a detention order is made, whether on bail or bail bond or otherwise.

25. A bare reading of Section 10 makes it clear that the maximum period for which a person can be preventively detained under the COFEPOSA Act is one year from the date of detention. But if a declaration is made under Section 9(1) of the Act, then the maximum period for which he can be detained is two years from the date of detention. The period of one year or two years, as the case may be, has to be counted from the date of detention and not from the date of the detention order. Though the Act permits revocation of the detention order and making of another detention order against the same person, it does not specifically provide what shall be the maximum period of detention in such a case. But it has been held that the total period of detention cannot exceed one year or two years, as the case may be. Section 12 which confers power on the Government to release temporarily a person detained does not specifically provide as to how that period is to be counted while computing the maximum period of detention.

26. The question as to the date from which the period of detention has to be counted was raised for the first time before this Court in Adam Kasam Bhaya’s case (supra). In that case the detenu was detained under COFEPOSA pursuant to order of detention dated May 7, 1979. The High Court of Gujarat quashed the order of detention. The State preferred an appeal to this Court and when it came up for hearing on September 15, 1981 a preliminary objection was raised on behalf of the detenu that, as the maximum period of detention permitted under Section 10 had expired, the appeal had become infructuous. Dealing with that objection this Court held as under:

“In our opinion, the submission has no force. In Section 10, both in the first and the second part of the section, it has been expressly mentioned that the detention will be for a period of one year or two years, as the case may be, from the date of detention, and not from the date of the order of detention. If the submission of learned counsel be accepted, two unintended results follow:

(1) a person against whom an order of detention is made under Section 3 of the Act can successfully abscond till the expiry of the period and altogether avoid detention; and (2) even if the period of detention is interrupted by the wrong judgment of a High Court, he gets the benefit of the invalid order which he should not. The period of one or two years, as the case may be, as mentioned in Section 10 will run from the date of his actual detention, and not from the date of the order of detention. If he has served a part of the period of detention, he will have to serve out the balance. The preliminary objection is overruled.”

A similar preliminary objection was raised in the case of Mohd. Ismail Jumma’s case (supra) and following the decision in Adam Kasam Bhaya it was overruled.

27. In Poonam Lata (supra) a contention was raised that the period of PAROLE cannot be added to the period of detention. The reasons put forward in support of this contention were:(1) as there is no provision authorising interruption of running of the period of detention, release on PAROLE does not bring about any change in the situation; (2) preventive detention is not a sentence by way of punishment and, therefore, the concept of serving out which pertains to punitive jurisprudence cannot be imported into the realm of prevention (preventive) detention and (3) even though grant of PAROLE to a detenu amounts to a provisional release from confinement; yet the detenu continues to be under restraint as he would still be subject to restrictions imposed on free and unfettered movement. Dealing with the first reason this Court observed:

“Since in our view release on PAROLE is a matter of judicial determination, apparently no provision as contained in the Code of Criminal Procedure relating to the computation of the period of bail was thought necessary in the Act.”

Dealing with the other two reasons this Court held as under:

“The key to the interpretation of S. 10 of the Act is in the words ‘may be detained.’ The subsequent words ‘from the date of detention’ which follow the words ‘maximum period of one year’ merely define the starting point from which the maximum period of detention of one year is to be reckoned in a case not falling under S. 9. There is no justifiable reason why the word ‘detain’ should not receive its plain and natural meaning. According to the Shorter Oxford English Dictionary, Vol. 1, p. 531, the word ‘detain’ means “to keep in confinement or custody”. Webster’s Comprehensive Dictionary, International Edition at p. 349 gives the meaning as “to hold in custody.” The purpose and object of S. 10 is to prescribe a maximum period for which a person against whom a detention order under the Act is made may be held in actual custody pursuant to the said order. It would not be violated if a person against whom an order of detention is passed is held in actual custody in jail for the period prescribed by the section. The period during which the detenu is on PAROLE cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, for in such a case he was not in actual custody. The order of detention prescribes the place where the detenu is to be detained. PAROLE brings him out of confinement from that place. Whatever may be the terms and conditions imposed for grant of PAROLE, detention as contemplated by the Act is interrupted when release on PAROLE is obtained. The position would be well met by the appropriate answer to the question “how long has the detenu been in actual custody pursuant to the order?” According to its plain construction, the purpose and object of S. 10 is to prescribe not only for the maximum period but also the method by which the period is to be computed. The computation has to commence from the date on which the detenu is taken into actual custody but if it is interrupted by an order of PAROLE, the detention would not continue when PAROLE operates and until the detenu is put back into custody. The running of the period recommences then and a total period of one year has to be counted by putting the different period of actual detention together. We see no force in Shri Jethmalani’s submission that the period during which the detenu was on PAROLE has to be taken into consideration in computing the maximum period of detention authorised by S. 10 of the Act.”

In Pushpa Devi (supra) this Court reiterated the same view with some more elaboration. With respect to the first reason this Court observed:

“It will not be out of place to point out here that in spite of the Criminal Procedure Code providing for release of the convicted offenders on probation of good conduct, it expressly provides, when it comes to a question of giving set off to a convicted person in the period of sentence, that only the actual pre-trial detention period should count for set off and not the period of bail even if bail had been granted subject to stringent conditions. In contract, insofar as preventive detentions under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974, are concerned, the Act specifically lays down that a person against whom an order of detention has been passed shall not be released on bail or bail bond or otherwise (vide S. 12(6) of the Act) and that any revocation or modification of the order of detention can be made only by the Government in exercise of its powers under S. 11. Incidentally, it may be pointed out that by reason of sub-section (6) of S. 12 of the Act placing an embargo on the grant of bail to a detenu there was no necessity for the legislature to make a provision similar to sub-section (4) of S. 389 of the Code of Criminal Procedure, 1973 (corresponding to sub-section (3) of S. 426 of the Code) for excluding the period of bail from the term of detention period.”

As regards the status of the detenu who is released on PAROLE this Court observed as under:

“Even if any conditions are imposed with a view to restrict the movements of the detenu while on PAROLE, the observance of those conditions can never lead to an equation of the period of PAROLE with the period of detention. One need not look far off to see the reason because the observance of the conditions of PAROLE, wherever imposed, such as reporting daily or periodically before a designated authority, residing in a particular town or city, travelling within prescribed limits alone and not going beyond etc. will not prevent the detenu from moving and acting as a free agent during the rest of the time or within the circumscribed limits of travel and having full scope and opportunity to meet people of his choice and have dealings with them, to correspond with one and all and to have easy and effective communication with whomsoever he likes through telephone, telex etc. Due to the spectacular achievements in modern communication system, a detenu, contacts with all his relations, friends and confederates in any part of the country or even any part of the world and thereby pursue his unlawful activities if so inclined. It will, therefore, be futile to contend that the period of PAROLE of a detenu has all the trippings of actual detention in prison and as such both the periods should find a natural merger and they stand denuded of their distinctive characteristics. Any view of the contrary would not only be opposed to realities but would defeat the very purpose of preventive detention and would also lead to making a mockery of the prevention (preventive) detention laws enacted by the Centre or the States.”

With respect to the object and purpose of the preventive detention this Court observed that:

“The entire scheme of preventive detention is based on the bounden duty of the State to safeguard the interests of the country and the welfare of the people from the canker of anti-national activities by anti-social elements affecting the maintenance of public order or the economic welfare of the country. Placing the interests of the nation above the individual liberty of the anti-social and dangerous elements who constitute a grave menace to society by their unlawful acts, the preventive detention laws have been made for effectively keeping out of circulation the detenus during a prescribed period by means of prevention (preventive) detention. The objective underlying preventive detention cannot be achieved or fulfilled if the detenu is granted PAROLE and brought out of detention.”

28. In Poonam Lata case (supra) this Court referred to its two earlier orders passed in Harish Makhija v. State of U.P. (1987) 3 SCC 432 and Amritlal Channumal Jain v. State of Gujarat, in W.P. Nos. 1342-43, 1345-48, 1567/82 and 162/83. The order passed in Harish Makhija’s case (supra) on 11-2-1985 was as under:

“It is obvious that the period of PAROLE cannot be counted towards the period of detention. The petitioner should surrender and serve out remaining period of 141 days’ detention.”

“In so far as these cases are concerned, the period during which the petitioners were on PAROLE shall be taken into account while calculating the total period of detention. The order of detention was passed more than two and half years ago.”

29. Rejecting the contention that the ratio laid down by the larger Bench in Amritlal Channumal Jain case has to prevail and must be taken as binding, this Court observed as under:

“We find it difficult from the observations made by a three-Judge Bench in Amritlal Channumal Jain’s case (supra) to infer a direction by this Court that a period of PAROLE shall not be added to the period of detention. The words used ‘shall be taken into account’ are susceptible of an interpretation to the contrary. We find that an order made by a Bench of two-Judges of this Court in Harish Makhija case (supra) unequivocally laid down that the period of PAROLE cannot be counted towards the period of detention. This accords with the view taken by this Court in a Bench of two-Judges in State of Gujarat v. Adam Kasam Bhaya (1981) 4 SCC 216 and State of Gujarat v. Ismail Juma (1981) 4 SCC 609. In view of these authorities which appear to be in consonance with the object and purpose of the Act and the statutory provisions and also having regard to the fact that the direction made in Amritlal Channumal Jain case is capable of another construction as well, we do not find Shri Jethmalani’s contention on this score as acceptable.”

With respect to the two orders we may observe that no reasons were given in support of the view taken in those cases. Therefore, it is not necessary to go into the controversy whether this Court laid down any law on the point in Harish Makhija case (supra) or that the order passed in the case of Amritlal Channumal Jain case was binding and ought to have been followed by this Court while deciding Poonam Lata case (supra).

30. We may also state that in Adam Kasam Bhaya case (supra) the only question that had arisen for consideration was whether the maximum period of detention starts running from the date of the order of detention or the date of actual detention. How the maximum period is to be counted when it is interrupted by a Courts invalid order or by an order of PAROLE was not the question raised or decided in that case. The observation that “if he has served a part of period of detention he will have to serve out the balance” was made in that context only and it cannot be taken as laying down that if the prescribed period of detention is thus interrupted then the detenu has to serve out the balance period of detention.

31. It was contended by the learned Attorney General that S. 10 and particularly the words ‘may be detained’ have to be read in the context of Art. 22(7)(b) of the Constitution and if they are so read, also keeping in mind the object and purpose of the Act, then correctly interpreted they would mean ‘may be actually detained.’ He submitted that Art. 22(7)(b) is permissive, it being not obligatory on Parliament to prescribe the maximum period of detention. Mr. Harish N. Salve, learned Solicitor General appearing for the State of Gujarat, also submitted that the Constitution thus contemplates longer period of detention in the sense that in absence of any limit prescribed by the Parliament detention can be for a period longer than one or two years. It is true that Art. 22(7)(b) has been held permissive and, therefore, there can be a prevention (preventive) detention legislation which does not provide for the maximum period of detention and a person can be detained thereunder for a period longer than one or two years. That, however, cannot justify the view that the provision prescribing maximum period of detention should be construed liberally. When the Parliament has chosen to fix the maximum period, the question as to how the said period is to be computed will have to be decided by considering the object of the legislation and the relevant provision, the words used in that provision and without being influenced by the nature of power conferred by Art. 22(7)(b). COFEPOSA, like all other preventive detention laws, has been regarded as a Draconian Law as it takes away the freedom and liberty of the citizen without a trial and on mere suspicion. It is tolerated in a democracy governed by the rule of law only as a necessary evil. Though the object of such legislation is to protect the nation and the society against anti-national and anti-social activities, the nature of action permitted is preventive and not punitive. The distinction between prevention (preventive) detention and punitive detention has now been well recognised. Preventive detention is qualitatively different from punitive detention/sentence. A person is preventively detained without a trial but punitive detention is after a regular trial and when he is found guilty of having committed an offence. The basis of preventive detention is suspicion and its justification is necessity. The basis of sentence is the verdict of the Court after a regular trial. When a person is preventively detained his detention can be justified only so long as it is found necessary. When a person is sentenced to suffer imprisonment it is intended that the person so sentenced shall remain in prison for the period stated in the order imposing sentence. The term specified in the order of sentence is intended to be actual period of imprisonment. On the other hand, preventive detention being an action of immediate necessity has to be immediate and continuous if it is to be effective and the purpose of detention is to be achieved. The safeguards available to a person against whom an order of detention has been passed are limited and, therefore, the Courts have always held that all the procedural safeguards provided by the law should be strictly complied with. Any default in maintaining the time limit has been regarded as having the effect of rendering the detention order or the continued detention, as the case may be, illegal. The justification for preventive detention being necessity a person can be detained only so long as it is found necessary to detain him. If his detention is found unnecessary, even during the maximum period permissible under the law then he has to be released from detention forthwith. It is really in this context that S. 10 and particularly the words ‘may be detained’ shall have to be interpreted.

32. The object of enacting the COFEPOSA Act is to provide for preventive detention in certain cases for the purposes of conservation and augmentation of foreign exchange and prevention of smuggling activities and for matters connected therewith. The Act was enacted as violations of foreign exchange regulations and smuggling activities are having an increasingly deleterious effect on the national economy and thereby a serious adverse effect on the security of the State. The power to detain is to be exercised on being satisfied with respect to any person that with a view to preventing him from including in any prejudicial activity specified in S. 3, it is necessary to make an order for his detention. The satisfaction of the detaining authority must be genuine. It has, therefore, been held that there must be a live and proximate link between the grounds of detention and the purpose of detention. Unreasonable delay in making of an order of detention may lead to an inference that the subjective satisfaction of the authority was not genuine as regards the necessity to prevent the person from indulging in any prejudicial activity and to make an order of detention for that purpose. So also long and unexplained delay in execution of the order has been held to lead to an inference that satisfaction was not genuine. Once the detaining authority is satisfied regarding the necessity to make an order of detention a quick action is contemplated, and if detention is to be effective then it has to be continuous. Section 8(b) requires the appropriate Government to make a reference to the Advisory Board within five weeks from the date of detention of the person under a detention order, in cases where S. 9 does not apply. Considering the object of this provision it can be said that the period of five weeks will have to be counted from the date of detention and it cannot get enlarged or extended because the detenu is provisionally released either by the Court or by the Government during that period. Once an order of detention is made and the person is detained pursuant thereto, then suspension is not contemplated and it can only be revoked or modified. That the detention can be effective only if it is not interrupted as indicated by S. 12(6) which provides that notwithstanding anything contained in any other law, no person against whom a detention order is in force shall be released whether on bail or otherwise. However, the power has been conferred upon the Government to release the detenu for any specified period. In our opinion, all these provisions clearly indicate the intention of the legislature that once detention starts it must run continuously and that the power to release on bail or otherwise has been taken away as it does not want the period of detention to be curtailed in any manner. I, therefore, see no justification for taking the view that the words ‘may be detained’ in S. 10 contemplate actual detention for the maximum period. If the word ‘detain’ is interpreted to mean actually detained for the maximum period, then it will partake the character of punitive detention and not preventive detention.

33. The reason given by this Court in Poonam Lata (supra) that the period during which the detenu is on PAROLE cannot be said to be a period during which he has been held in custody pursuant to the order of his detention, because he was not in actual custody then, does not appear to be sound. The learned Attorney General also contended that the said observation requires reconsideration as it is possible to take the view that a person temporarily released under S. 12 is in constructive custody. The learned Solicitor General also submitted that in spite of an order under S. 12 it can be said that the detenu is not a free person during that period as his freedom and liberty would be subject to the conditions imposed by the Government. A temporary release under S. 12 of the person detained does not change his status as his freedom and liberty are not fully restored. Therefore, the period of temporary release on PAROLE cannot be excluded from the maximum period of detention. Though the purpose and object of S. 10 is to prescribe not only the maximum period of detention but also for the method of computation of the period as contended by the learned Attorney General, the only inference that can be drawn therefrom is that the period of detention has to be computed from the date of actual detention and not from the date of the order of detention. Since S. 10 does not prescribe any other method, it is not proper to draw a further inference that the maximum period of detention is to be computed by excluding the period during which the detenu was released on PAROLE. It was also contended by the learned Attorney General that the detenu cannot be permitted to take advantage of an order of PAROLE or an invalid judgment of the Court. In such a case, there is not the question of extending the period of detention but ensuring that the original period of one year is worked out. It will not amount to punishing the detenu for any wrong done by the Court but it would amount to not permitting the detenu to take advantage of an order of PAROLE or a wrong judgment or order of the Court. For the reasons already stated above, even this contention cannot be accepted. The Act contemplates continuous period of detention. If in spite of that any interruption is made in the running of that period then the only effect it can have is to curtail the period of detention. Taking the contrary view that the detenu must serve out the balance period of detention would render the detention punitive after the period of one or two years, as the case may be, counted from the date of detention comes to an end.

34. I, therefore, hold that Harish Makhija (1987) 3 SCC 432), Poonam Lata (supra) and Pushpa Devi (supra) do not lay down the correct law on the point. I further hold that if the period of detention is interrupted either by an order of provisional release made under S. 12 or by an order of the Court, then the maximum period of detention to that extent gets curtailed and neither the period of PAROLE nor the period during which the detenu was released pursuant to the order of the Court can be excluded while computing the maximum period of detention.

35. In the result, I allow both the writ petitions and also dispose of the special leave petition in terms of the view that we have taken in this judgment.

Criminal Procedure Code, 1973—Section 389—Suspension of sentence and release on bail—Consideration for—Offence of murder—Court is required to consider factors like nature of accusation, manner of commission of crime, gravity of offence, and desirability of releasing accused on bail—Mere fact that during period of PAROLE accused has not misused liberties does not per se warrant suspension of execution of sentence and grant of bail—Hence, order directing suspension of sentence and grant of bail is clearly unsustainable and is set aside.

In cases involving conviction under Section 302, IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. In considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302, IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

In the instant case, the High Court has not considered these aspects. It has granted bail primarily on the ground that after the conviction the accused had been granted PAROLE on three occasions and there was no allegations of any misuse of liberty during the period of PAROLE. The mere fact that during the period of PAROLE the accused has not misused the liberties does not per se warrant suspension of execution of sentence and grant of bail. Hence, the order directing suspension of sentence and grant of bail is clearly unsustainable and is set aside.

Criminal Procedure Code, 1973—Section 389—Suspension of sentence and release on bail—Duty of Court—Court is required to record reasons and consider aspects of case carefully before ordering suspension of sentence and grant of bail.

Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in wrtiting for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

Counsel for the Parties:

Sunder Khatri and Vinay Kumar Garg, Advocates, for Appellant.

Zafar Sadique and Balraj Dewan, Advocates, for Respondent.

Judgment

Arijit Pasayat, J—Leave granted.

2. The State of Haryana calls in question grant of bail to accused Hasmat (respondent herein) by the Punjab and Haryana High Court. Criminal Miscellaneous No. 14009/2003 was filed in Criminal Appeal No. 100/2002 purportedly under S. 389 of the Code of Criminal Procedure, 1973 (in short the ‘Code’) with a prayer that the substantive sentence imposed i.e. imprisonment for life and a fine of ` 10,000/- should be suspended and the respondent be released on bail during the pendency of the appeal filed. The accused-respondent along with twenty two others faced trial for alleged commission of offences punishable under Ss. 148, 302, 307, 324 read with Section 149 of Indian Penal Code, 1860 (in short the ‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (in short the ‘Arms Act’). Accused-respondent along with some others was found guilty of offences punishable under Sections 302, 307, 148 read with Section 149, I. P. C. They were sentenced to undergo imprisonment for life and pay the fine as aforenoted for the offence punishable under Section 302 read with Section 149, I. P. C.

3. The High Court by the impugned order granted bail primarily on the ground that after the conviction the accused respondent had been granted PAROLE on three occasions and there was no allegation of any misuse of liberty during the period of PAROLE.

4. According to learned counsel for the appellant-State it was the accused respondent who was the key figure in a gruesome murder and there was direct and unimpeachable evidence establishing the commission of the crime by him. The trial Court by a detailed and reasoned judgment held him guilty, convicted and sentenced as aforesaid. Merely because PAROLE was granted, the same cannot be a ground for suspension of the sentence and grant of bail in terms of Section 389 of the Code.

5. Per contra, learned counsel for the accused-respondent submitted that there was no allegation of misuse of liberty during the PAROLE period. The High Court was justified in granting bail to the accused respondent. It is not a fit case which calls for interference in terms of Art. 136 of the Constitution of India, 1950 (in short the ‘Constitution’).

6. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the Appellate Court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If he is in confinement, the said Court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.

7. The Appellate Court is duty bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the period the accused-respondent was granted PAROLE.

8. The learned Sessions Judge, Gurgaon by a judgment dated 24-10-2001 had found the accused respondent guilty. Criminal Appeal No. 100DB/2002 was filed by the respondent. The fact that during the pendency of the appeal the accused respondent was on PAROLE goes to show that initially the accused respondent was not given the benefit of suspension of execution of sentence. The mere fact that during the period of PAROLE the accused has not misused the liberties does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court was whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.

9.In Vijay Kumar vs. Narendra and others (2002) 9 SCC 364 and Ramji Pasad vs. Rattan Kumar Jaiswal and another (2002) 9 SCC 366, it was held by this Court that in cases involving conviction under Section 302, I. P. C., it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar’s case (supra) it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under S. 302, I. P. C., the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order.

10. The order directing suspension of sentence and grant of bail is clearly unsustainable and is set aside. We, therefore, set aside the order. Learned counsel for the accused-respondent stated that a fresh application shall be moved. In case it is done, the High Court, it goes without saying, shall consider the matter in accordance with law, in its proper perspective. We express no opinion in that regard.

11. Learned counsel for the respondent vehemently urged that though application for suspension of execution of sentence and grant of bail was filed containing several reasons and not only absence of mis-use of liberties during the period of PAROLE, the High Court has not touched those aspects.

Prisons Act, 1894—Section 59—Prison (Bombay Furlough and PAROLE) Rules, 1959—Rules 4(4) and 6—”Furlough System” and “PAROLE System”—Release on furlough not an absolute right of prisoner, but is subject to conditions mentioned in Rules 4(4) and 6—Furlough is allowed periodically irrespective of any reason merely with a view to enable a prisoner to have “family association”, family and social ties and to avoid ill-effect of continuous prison life—Release would be refused when it was not recommended by Commissioner of Police and/or by District Magistrate on ground of public peace and tranquility—Verification received from police by District Magistrate indicate that the sister of the respondent refused to stand surety as he allegedly committed rape on his step mother and had been convicted for offences punishable under Sections 376 and 354 IPC—In view of such an adverse report, Competent Authority rejected application for grant of furlough—High Court while granting furlough to respondent did not record any finding that the report of District Magistrate and/or Superintendent of Police had not objected to release respondent on furlough on ground of public peace and tranquility—Impugned order being indefensible set aside.

Prisons Act, 1894—Section 59—Prison (Bombay Furlough and PAROLE) Rules, 1959—Rule 6—Furlough—Grant of—Prisoner shall not be granted furlough unless he has a relative willing to receive him and is ready to enter into a surety bond—Sister of respondent refused to stand surety as he allegedly committed rape on his step mother and had been convicted for offences under Sections 376 and 354 IPC—In view of adverse police report and non-compliance with requirements, application rejected by competent authority.

Prisons Act, 1894—Section 59—Prison (Bombay Furlough and PAROLE), Rules, 1959—Rules 4(4) and 6—”Furlough” and “PAROLE”—Furlough is granted not for particular reason, it can be denied in the interest of society, whereas PAROLE is to be granted only on sufficient cause shown.

Counsel for the Parties:

S. S. Shinde and V. N. Raghupathy, Advocates, for Appellants.

Judgment

Arijit Pasayat, J—Leave granted.

2. Heard counsel for the appellants.

3. None appears for the respondent in spite of service of notice.

4. The State of Maharashtra and the Superintendent, District Prison, Akola, Maharashtra challenge the order passed by learned single Judge of the Bombay High Court, Nagpur Bench accepting respondent’s prayer for release on furlough. By the impugned order, learned single Judge directed release of the respondent on furnishing his surety of ` 500/- lying in deposit with the jail authorities.

5. According to the learned counsel for the appellants, the High Court has not kept in view Rules 4(4) and 6 of the Prison (Bombay Furlough and PAROLE) Rules, 1959 (in short, the ‘Rules’). The said Rules have been framed in exercise of powers conferred by Clauses (5) and (28) of Section 59 of the Prisons Act, 1894 (in short the ‘Act’) in its application to the State of Maharashtra as it stood then. The expression ‘Furlough System’ is defined in Clause 5(A) of Section 3 of the Act, while the expression ‘PAROLE System’ is defined in Clause 5(B) of the said provision. The underlying object of the Rules relating to ‘PAROLE’ and ‘Furlough’ have been mentioned in the report submitted by All India Jail Manual Committee and the objects mentioned in Model Prison Manual. The ‘Furlough’ and ‘PAROLE’ have two different purposes. It is not necessary to state the reasons while releasing the prisoner on furlough, but in case of PAROLE reasons are to be indicated in terms of Rule 19. But release on furlough cannot be said to be an absolute right of the prisoner as culled out from Rule 17. It is subject to the conditions mentioned in Rules 4(4) and 6. Furlough is allowed periodically under Rule 3 irrespective of any particular reason merely with a view to enable the prisoner to have family association, family and social ties and to avoid ill effect of continuous prison life. Prison of furlough is treated as a period spent in the prison. But Rule 20 shows that period spent on PAROLE is not to be counted as remission of sentence. Since the furlough is granted for no particular reason, it can be denied in the interest of society; whereas PAROLE is to be granted only on sufficient cause being shown.

6. Rules 4(4) and 6 read as follows :

Rule 4: When prisoners shall not be granted furlough.

The following categories of prisoners shall not be considered for release on furlough :

**********

(4) Prisoners whose release is not recommended in Greater Bombay by the Commissioner of Police and elsewhere, by the District Magistrate on the ground of public peace and tranquillity.

Rule 6 : Furlough not to be granted without surety :

A prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and ready to enter into a surety bond in Form A appended to these rules for such amount as may be fixed by the Sanctioning Authority.

[Provided that the Sanctioning Authority may dispense with the requirement of execution of such bond by relatives of prisoners confined in Open Prisons as defined in clause (b) of rule 2 of the Maharashtra Open Prisons Rules 1971.]

7. A bare reading of Rule 4(4) indicates that release can be refused when the same is not recommended by the Commissioner of Police in Greater Bombay and elsewhere, by the District Magistrate on the ground of public peace and tranquillity.

8. Rule 6, inter alia, provides that a prisoner shall not be granted furlough unless he has a relative willing to receive him while on furlough and is ready to enter into a surety bond in Form A appended to the Rules for such amount as may be fixed by the Sanctioning Authority. The proviso authorizes the Sanctioning Authority to dispense with the requirement of execution of such bond by relatives of prisoners confined in Open Prisons as defined in clause (b) of rule 2 of the Maharashtra Open Prisons Rules, 1971. Therefore, the twin requirements flowing from Rule 6 are (a) a relative of the applicant should be willing to receive him while on furlough, and (b) he must be ready to enter into a surety bond. In the instant case, the relatives refused to execute such surety bond. The verification reports received by the police from the District Magistrate, Amravati and Superintendent of Police, Amravati indicate that the sister of the respondent refused to stand surety as the respondent allegedly committed rape on his step mother and has been convicted for offences punishable under Sections 376 and 354 of the Indian Penal Code, 1860 and sentenced to suffer imprisonment for seven years with fine. In view of the adverse police report and non-compliance with the requirements stipulated under Rules 4(4) and 6, the Competent Authority rejected the application for grant of furlough by order dated 18-7-2005.

9. Unfortunately, the High Court does not appear to have addressed itself to these relevant aspects. It took note of the fact that nobody was willing to stand surety for release of the respondent. The High Court directed that he can be released on furnishing surety of amount lying in deposit with the jail authorities. That is not the only condition for release on furlough. There is another requirement. Even if it is held for the sake of argument that furnishing of surety of any amount lying in deposit with the jail authorities can be construed to be in compliance with the requirements of Rule 6, Rule 4(4) mandates that the prisoner who seeks to be released cannot be released if not recommended by the concerned authority on the ground of public peace and tranquillity. The High Court has not recorded any finding that the report of the District Magistrate and/or Superintendent of Police had not objected to the release on furlough on the ground of public peace and tranquillity.

10. Looked at from any angle, the High Court’s order is indefensible. The same is set aside. It is, however, open to the respondent to apply for release on fulfillment of the requisite conditions as prescribed in the Rules. Needless to say that the same shall be considered in its own perspective in accordance with law. The appeal is allowed.

Narcotic Drugs And Psychotropic Substances Act, 1985—Section 32-A—Parole—Grant of—Power of State—Parole does not amount to suspension, remission or commutation of sentence—Therefore Section 32-A cannot be said to be a bar on power of State to grant parole.

“Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence.

Parole therefore did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of Section 32-A of the Act. Notwithstanding the provisions of the offending Section 32-A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions.

Narcotic Drugs And Psychotropic Substances Act, 1985—Section 32-A—Provisions under—Constitutional validity—Section 32-A is unconstitutional to the extent it takes away right of Appellate Court to suspend sentence of convict—However, it is valid to the extent it takes away right of executive to suspend, remit and commute sentence.

Sethi, J—The Constitutional validity of Section 32-A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) is under challenge in these petitions filed by the convicts of the offences under the Act. The section is alleged to be arbitrary, discriminatory and violative of Articles 14 and 21 of the Constitution of India which creates unreasonable distinction between the prisoners convicted under the Act and the prisoners convicted for the offences punishable under various other statutes. It is submitted that the Legislature is not competent to take away, by statutory prohibition, the judicial function of the Court in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended or not. The section is further assailed on the ground that it has negated the statutory provisions of Sections 389, 432 and 433 of the Code of Criminal Procedure (hereinafter referred to as “the Code”) in the matter of deciding as to whether after the conviction under the Act the sentence can be suspended, remitted or commuted or not and also under what circumstances, restrictions or limitations on the suspension of sentences or the grant of bail could be passed. It is further contended that the Legislature cannot make relevant considerations irrelevant or deprive the Courts of their legitimate jurisdiction to exercise the discretion. It is argued that taking away the judicial power of the appellate Court to suspend the sentence despite the appeal meriting admission, renders the substantive right of appeal illusory and ineffective. According to one of the petitioners, the prohibition of suspension precludes the Executive from granting parole to a convict who is otherwise entitled to it under the prevalent statutes, jail manual or Government instructions issued in that behalf.

2. The petitioner in W.P. No. 169/99 was arrested and upon conviction under S. 21 of the Act sentenced to undergo imprisonment for 10 years. He claims to have already undergone sentence for more than 7 years. He could not claim parole presumably under the impression that S. 32-A of the Act was a bar for the State to grant it. Though the petitioner has referred to Maharashtra Jail Manual, particularly Chapter XXXVIII providing various kinds of remissions and authorising the grant of parole yet nothing is on the record to show as to whether he in fact applied for parole or not.

3. Petitioner in W.P. 243 of 1999, after trial was convicted under the Act and the bail application filed by him along with appeal presented in the High Court was dismissed as not pressed in view of the judgment of this Court in Maktool Singh v. State of Punjab JT 1999 (2) SC 176.

4. The vires of the section have been defended by the Union of India on the ground that as the Parliament has jurisdiction to enact the law pertaining to Narcotic Drugs and Psychotropic Substances Act, reasonable restrictions can be imposed upon the right of the convict to file appeal and seek release, remission or commutation. The Act is intended to curb the drug addiction and trafficking which is termed to be eating into the vitals of the economy of the country. The illicit money generated by drug trafficking is being used for illicit activities including encouragement of terrorism. Anti-drug justice has been claimed to be a criminal dimension of social justice. It is submitted that statutory control over narcotic drugs in India was being generally exercised through certain Central enactments, though some of the States had also enacted certain statutes to deal with illicit traffic in drugs. Reference is made to the Opium Act and the Dangerous Drugs Act etc. In the absence of comprehensive law to effectively control psychotropic substances in the manner envisaged by the International Convention of Psychotropic Substances, 1971, a necessity was felt to enact some comprehensive legislation on the subject. With a view to meet the social challenge of great dimensions, the Parliament enacted the Act to consolidate and amend the existing provisions relating to control over drug abuse and to provide for enhanced penalties under the Act. The Act provides enhanced and stringent penalties. The offending section is claimed to be not violative of Arts. 14, 19 and 21 of the Constitution of India. To fulfil the international obligations and to achieve the objectives of curbing the menace of illegal trafficking, the section was enacted not only to take away the power of the Executive under S. 433 of the Code but also the power under the Code to suspend, remit or commute the sentences passed under the Act. The convicts under the Act are stated to be a class in themselves justifying the discrimination without offending guarantee of equality enshrined in the Constitution. To support the constitutional validity of the section, the respondents have also relied upon the Lok Sabha debates on the subject.

5. Before dealing with the main issue regarding the validity of S. 32-A, a side issue, projected in Writ Petition No. 169, is required to be dealt with. The writ petition appears to be based upon the misconception of the provisions of law and in ignorance to the various pronouncements of this Court.

6. Parole is not a suspension of the sentence. The convict continues to be serving the sentence despite granting of parole under the Statute, Rules, Jail Manual or the Government Orders. “Parole” means the release of a prisoner temporarily for a special purpose before the expiry of a sentence, on the promise of good behaviour and return to jail. It is a release from jail, prison or other internment after actually been in jail serving part of sentence.

7. Grant of parole is essentially an Executive function to be exercised within the limits prescribed in that behalf. It would not be open to the Court to reduce the period of detention by admitting a detenu or convict on parole. Court cannot substitute the period of detention either by abridging or enlarging it. Dealing with the concept of parole and its effect on period of detention in a preventive detention matter, this Court in Poonam Lata v. M. L. Wadhawan (1987) 3 SCC 347 held:

“There is no denying of the fact that preventive detention is not punishment and the concept of serving out a sentence would not legitimately be within the purview of preventive detention. The grant of parole is essentially an executive function and instances of release of detenus on parole were literally unknown until this Court and some of the High Courts in India in recent years made orders of release on parole on humanitarian considerations. Historically ‘parole’ is a concept known to military law and denotes release of a prisoner of war on promise to return. Parole has become an integral part of the English and American systems of criminal justice intertwined with the evolution of changing attitudes of the society towards crime and criminals. As a consequence of the introduction of parole into the penal system, all fixed term sentences of imprisonment of above 18 months are subject to release on licence, that is, parole after a third of the period of sentence has been served. In those countries, parole is taken as an act of grace and not as a matter of right and the convict prisoner may be released on condition that he abides by the promise. It is a provisional release from confinement, but is deemed to be a part of the imprisonment. Release on parole is a wing of the reformative process and is expected to provide opportunity to the prisoner to transform himself into a useful citizen. Parole is thus a grant of partial liberty of lessening of restrictions to a convict prisoner, but release on parole does not change the status of the prisoner. Rules are framed providing supervision by parole authorities of the convicts released on parole and in case of failure to perform the promise, the convict released on parole is directed to surrender to custody. (See The Oxford Companion to Law, edited by Walker, 1980 Edn., p. 931; Black’s Law Dictionary, 5th Edn., p. 1006; Jowitt’s Dictionary of English Law, 2nd Edn., Vol. 2, p. 1320; Kenny’s Outlines of Criminal Law, 17th Edn., pp. 574-76; the English Sentencing System by Sir Rupert Cross at pp. 31-34; 87 et seq; American Jurisprudence, 2nd Edn., Vol. 59, pp. 53-61; Corpus Juris Secundum, Vol. 67; Probation and Parole, Legal and Social Dimensions by Louis P. Carney). It follows from these authorities that parole is the release of a very long term prisoner from a penal or correctional institution after he has served a part of his sentence under the continuous custody of the State and under conditions that permit his incarceration in the event of mishebaviour.”

8. This position was again reiterated in State of Haryana v. Mohinder Singh (2000) 3 SCC 394.

9. The Constitution Bench of this Court in Sunil Fulchand Shah v. Union of India (2000) 3 SCC 409 considered the distinction between bail and parole in the context of reckoning the period which a detenu has to undergo in prison and held:

“Bail and parole have different connotation in law. Bail is well understood in criminal jurisprudence and Chapter XXXIII of the Code of Criminal Procedure contains elaborate provisions relating to grant of bail. Bail is granted to a person who has been arrested in a non-bailable offence or has been convicted of an offence after trial. The effect of granting bail is to release the accused from internment though the Court would still retain constructive control over him through the sureties. In case the accused is released on his own bond such constructive control could still be exercised through the conditions of the bond secured from him. The literal meaning of the word ‘bail’ is surety. In Halsbury’s Laws of England, 4th Edn., Vol. 11, para 166, the following observation succinctly brings out the effect of bail:

The effect of granting bail is not to set the defendant (accused) at liberty but to release him from the custody of law and to entrust him to the custody of sureties who are bound to produce him to appear at his trial at a specified time and place. The sureties may seize their principal at any time and may discharge themselves by handing him over to the custody of law and he will then be imprisoned.

‘Parole,’ however, has a different connotation than bail even though the substantial legal effect of both bail and parole may be the release of a person from detention or custody. The dictionary meaning of “parole” is:

The Concise Oxford Dictionary – (New Edition)

“The release of a prisoner temporarily for a special purpose or completely before the expiry of a sentence, on the promise of good behaviour; such a promise; a word of honour.”

Black’s Law Dictionary – (6th Edition)

“Release from jail, prison or other confinement after actually serving part of sentence. Conditional release from imprisonment which entitles paroles to serve remainder of his term outside confides of an institution, if he satisfactorily complies with all terms and conditions provided in parole order.”

According to the Law Lexicon, “Parole” has been defined as:

“A parole is a form of conditional pardon, by which the convict is released before the expiration of his term, to remain subject, during the remainder thereof, to supervision by the public authority and to return to imprisonment on violation of the condition of the parole.”

A ‘parole’ is not a ‘suspension of sentence,’ but is a substitution, during continuance of parole, of lower grade of punishment by confinement in legal custody and under control of warden within specified prison bounds outside the prison, for confinement within the prison adjudged by the Court. Jenkins v. Madigan (CA Ind, 211 F 2d 904, 906).

A ‘parole’ does not suspend or curtail the sentence originally imposed by the Court as contrasted with a ‘commutation of sentence’ which actually modifies it.”

10. Again in State of Haryana v. Nauratta Singh (2000) 3 SCC 514, it was held by this Court as under:

“Parole relates to executive action taken after the door has been closed on a convict. During parole period there is no suspension of sentence but the sentence is actually continuing to run during that period also.”

11. It is thus clear that parole did not amount to the suspension, remission or commutation of sentences which could be withheld under the garb of S. 32-A of the Act. Notwithstanding the provisions of the offending S. 32-A, a convict is entitled to parole, subject, however, to the conditions governing the grant of it under the statute, if any, or the Jail Manual or the Government Instructions. The Writ Petition No. 169 of 1999 apparently appears to be misconceived and filed in a hurry without approaching the appropriate authority for the grant of relief in accordance with Jail Manual applicable in the matter.

12. We will now deal with the crux of the matter relating to the constitutional validity of S. 32-A in the light of the challenge thrown to it. Section 32-A of the Act reads:

“32-A. No suspension, remission or commutation in any sentence awarded under this Act.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 or any other law for the time being in force but subject to the provisions of S. 33, no sentence awarded under this Act (other than S. 27) shall be suspended or remitted or commuted.”

13. A perusal of the section would indicate that it deals with three different matters, namely, suspension, remission and commutation of the sentences. Prohibition contained in the section is referable to Ss. 389, 432 and 433 of the Code. Section 432 of the Code provides that when any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced in the manner and according to the procedure prescribed therein. Section 433 empowers the appropriate Government to commute:

“(a) a sentence of death, for any other punishment provided by the Indian Penal Code;

(b) a sentence of imprisonment for life, for imprisonment for a term not exceeding fourteen years or for fine;

(c) a sentence of rigorous imprisonment, for simple imprisonment for any term to which that person might have been sentenced, or for fine;

(d) a sentence of simple imprisonment, for fine.”

14. However, Section 389 of the Code empowers an appellate Court to suspend the sentence pending the appeal and release the appellant on bail. Section 32-A of the Act, therefore, takes away the powers both of the appellate Court and the State Executive in the matter of suspending, remitting and commuting the sentence of a person convicted under the Act other than for an offence under S. 27 of the Act. This Court in Maktool Singh’s case (supra) held that S. 32-A of the Act was a complete bar for the appellate Court to suspend a sentence passed on persons convicted of offences under the Act (except under S. 27) either during the pendency of any appeal or otherwise. It has an overriding effect with regard to the powers of suspension, commutation and remission provided under the Code. After referring to some conflicting judgments of the High Courts, this Court concluded:

“The upshot of the above discussion is that S. 32-A of the Act has taken away the powers of the Court to suspend a sentence passed on persons convicted of offences under the Act (except S. 27) either during pendency of any appeal or otherwise. Similarly, the power of the Government under Ss. 432, 433 and 434 of the Criminal Procedure Code have also been taken away. Section 32-A would have an overriding effect with regard to the powers of suspension, commutation and remission provided under the Criminal Procedure Code.”

15. The restriction imposed under the offending section, upon the Executive are claimed to be for a reasonable purpose and object sought to be achieved by the Act. Such exclusion cannot be held unconstitutional, on account of its not being absolute in view of the constitutional powers conferred upon the Executive. Articles 72 and 161 of the Constitution empowers President and the the Governor of a State to grant pardons, reprieves, respites or remissions of punishments or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the Executive power of the Union and State exists. For the exercise of aforesaid constitutional powers circulars are stated to have been issued by the appropriate Governments. It is further submitted that the circulars prescribe limitations both as regards the prisoners who are eligible and those who have been excluded. The restriction imposed upon the Executive, under the section, appears to be for a reasonable purpose and object sought to be achieved by the section. While moving the Amendment Bill, which included S. 32-A, in the Parliament on 16th December, 1988, the Minister of State in Department of Revenue in the Ministry of Finance explained to the Parliament that the country had been facing the problem of transit traffic in illicit drugs which had been escalated in the recent past. The spill over from such traffic had been causing problems of abuse and addiction. The Government was concerned with the developing drug situation for which a number of legislative, administrative and preventive measures had been taken resulting in checking the transit traffic to a considerable extent. However, increased internal drug traffic, diversion of opium from illicit growing areas and attempts of illicit manufacture of drugs within the country threatened to undermine the effects of the counter measures taken. Keeping in mind the magnitude of the threat from drug trafficking from the Golden Crescent region comprising Pakistan, Afghanistan and Iran and the Golden Triangle region comprising Burma, Thailand and Laos and having regard to the internal situation, a 14 point directive was stated to have been issued by the then Prime Minister on 4th April, 1988, as a new initiative to combat drug trafficking and drug abuse. Keeping in mind the working of the 1985 Act, the Cabinet Sub-Committee recommended that the Act be suitably amended, inter alia:

“(i) to provide for the constitution of a fund for control of drug abuse and its governing body. The fund is to be financed by such amounts as may be provided by the Parliament, the sale proceeds of any property forfeited under the Act and any grants that may be made by any person or institution;

(ii) to provide for death penalty on second conviction in respect of specified offences involving specified quantities of certain drugs;

(iii) to provide that no sentence awarded under the Act, other than S. 27, should be suspended, remitted or commuted;

(iv) to provide for constitution of Special Courts;

(v) to provide that every offence punishable under this Act shall be cognizable and non-bailable;

(vi) to provide immunity from prosecution to the addicts volunteering for treatment for deaddiction or detoxification once in their lifetime;

(vii) to bring certain substances which are neither narcotic drugs nor psychotropic substances but are used in the manufacture or production of these drugs or substances, under the ambit of the Act. Such controlled substances would be regulated by issue or order;

(viii) violation of the provisions relating to the controlled substances would be liable for punishment with rigorous imprisonment for a term which may extend to 10 years and fine which may extend to ` 1 lakh;

(ix) financing illicit traffic and harbouring drug offenders would be offences liable to punishment at the same level as per drug traffic offences.”

The distinction of the convicts under the Act and under other statutes, in so far as it relates to the exercise of the Executive powers under Ss. 432 and 433 of the Code is concerned, cannot be termed to either arbitrary or discriminatory being violative of Art. 14 of the Constitution. Such deprivation of the executive can also not be stretched to hold that the right to life of a person has been taken away except, according to the procedure established by law. It is not contended on behalf of the petitioners that the procedure prescribed under the Act for holding the trial is not reasonable, fair and just. The offending section, in so far as it relates to the Executive in the matter of suspension, remission and commutation of sentence, after conviction, does not, in any way, encroach upon the personal liberty of the convict tried fairly and sentenced under the Act. The procedure prescribed for holding the trial under the Act cannot be termed to be arbitrary, whimsical or fanciful. There is, therefore, no vice of unconstitutionality in the section in so far as it takes away the powers of the Executive conferred upon it under Ss. 432 and 433 of the Code, to suspend, remit or commute the sentence of a convict under the Act.

16. Learned counsel appearing for the parties were more concerned with the adverse effect of the section on the powers of the judiciary. Impliedly conceding that the section was valid so far as it pertained to the appropriate Government, it was argued that the Legislature is not competent to take away the judicial powers of the Court by statutory prohibition as is shown to have been done vide the impugned section. Awarding sentence, upon conviction, is concededly a judicial function to be discharged by the Courts of law established in the country. It is always a matter of judicial discretion, however, subject to any mandatory minimum sentence prescribed by the law. The award of sentence by a Criminal Court wherever made subject to the right of appeal cannot be interfered or intermeddled with in a way which amounts to not only interference but actually taking away the power of judicial review. Awarding the sentence and consideration of its legality or adequacy in appeal is essentially a judicial function embracing within its ambit the power to suspend the sentence under the peculiar circumstances of each case, pending the disposal of the appeal.

17. Not providing at least one right of appeal, would negate the due process of law in the matter of dispensation of criminal justice. There is no doubt that the right of appeal is the creature of a statute and when conferred, a substantive right. Providing a right of appeal but totally disarming the Court from granting interim relief in the form of suspension of sentence would be unjust, unfair and violative of Art. 21 of the Constitution particularly when no mechanism is provided for early disposal of the appeal. The pendency of criminal litigation and the experience in dealing with pending matters indicate no possibility of early hearing of the appeal and its disposal on merits at least in many High Courts. As the present is not the occasion to dilate on the causes for such delay, we restrain ourselves from that exercise. In this view of the matter, the appellate powers of the Court cannot be denuded by Executive or judicial process.

18. This Court in Bhagwan Rama Shinde Gosai v. State of Gujarat, AIR 1999 SC 1859 held that when a convicted person is sentenced to a fixed period of sentence and the appellate Court finds that due to practical reasons the appeal cannot be disposed of expeditiously, it can pass appropriate orders for suspension of sentence. The suspension of the sentence by the appellate Court has, however, to be within the parameters of the law prescribed by the Legislature or spelt out by the Courts by judicial pronouncements. The exercise of judicial discretion on well recognised principles is the safest possible safeguards for the accused which is at the very core of criminal law administered in India. The Legislature cannot, therefore, make law to deprive the Courts of their legitimate jurisdiction conferred under the procedure established by law.

19. Thomas M. Cooley in his “Treatise on the Constitutional limitations” 8th Edition observed that if the Legislature cannot thus indirectly control the action of the Courts by requiring of them a construction of the law according to its own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling them to grant new trials, ordering the discharge of offenders, or directing what particular steps shall be taken in the progress of a judicial inquiry. In Denny v. Mattoon (2 Allen 361), it was stated:

“If, for example, the practical operation of a statute is to determine adversary suits pending between party and party, by substituting in place of the well settled rules of law the arbitrary will of the legislature, and thereby controlling the action of the Tribunal before which the suits are pending, no one can doubt that it would be an unauthorised act of legislation, because it directly infringes on the peculiar and appropriate functions of the judiciary. It is exclusive province of Courts of justice to apply established principles to cases within their jurisdiction, and to enforce their decisions by rendering judgments and executing them by suitable process. The legislature have no power to interfere with this jurisdiction in such manner as to change the decision of cases pending before Courts, or to impair or set aside their judgments, or to take cases out of the settled course of judicial proceeding. It is on this principle that it has been held that the legislature have no power to grant a new trial or direct a rehearing of a cause which has been once judicially settled. The right of a review, or to try a new facts which have been determined by a verdict or decree, depends on fixed and well settled principles, which it is the duty of the Court to apply in the exercise of a sound judgment and discretion. These cannot be regulated or governed by legislative action.”

20. Cooley further opined that forfeiture of rights and property cannot be adjudged by legislative act, confiscations without a judicial hearing after due notice would be void as not being due process of law. Rights of the parties, without the authority of passing consequential or interim orders in the interest of justice, would not be a substantive one.

21. Offending section is stated to have been enacted in discharge of the international obligations as claimed by the concerned Minister in the Parliament. This submission also appears to be without any substance. Countries, parties to the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988, in the 6th Plenary Meeting held on 19th December, 1988 resolved to adopt means and measures to curb the rising trend in the illicit production of demand for and traffic in narcotic drugs and psychotropic substances which posed a serious threat to the health and welfare of the human beings and adversely affected the economic, cultural and political foundations of the society. The member countries, inter alia agreed to adopt such measures as may be necessary to establish as criminal offences in its domestic law when committed intentionally:

“(a) (i) The production, manufacture, extraction, preparation, offering, offering for sale, distribution, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport, importation or exportation of any narcotic drug or any psychotropic substance contrary to the provisions of the 1961 Convention, the 1961 Convention as amended or the 1971 Convention;

ii) The cultivation of opium poppy, coca bush or cannabis plant for the purpose of the production of narcotic drugs contrary to the provisions of the 1961 Convention and 1961 Convention as amended;

iii) The possession or purchase of any narcotic drug or psychotropic substance for the purpose of any of the activities enumerated in (i) above;

iv) The manufacture, transport, or distribution of equipment, materials or of substances listed in Table I and Table II, knowing that they are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

v) The organisation, management or financing of any of the offences enumerated in (i), (ii), (iii) or (iv) above;

(b) (i) The conversion or transfer of property, knowing that such property is derived from any offence or offences established in accordance with sub-paragraph (a) of this paragraph, or from an act, of participation in such offence or offences, for the purpose of concealing or disguising the illicit (sic) original of the property or of assisting any person who is involved in the commission of such an offence or offences to evade the legal consequences of his actions,

iii) The concealment or disguise of the true nature, source, location, disposition, movement rights with respect to, or ownership of property, knowing that such property is derived from an offence or offences established in accordance with paragraph (a) of this paragraph or from an act of participation in such an offence or offences;

It was further agreed that subject to the constitutional principles and the basic concept of its legal system each country shall provide for:

“(i) The acquisition, possession or use of property, knowing, at the time of receipt, that such property was derived from an offence or offences established in accordance with sub-paragraph (a) of this paragraph or from an act of participation in such offence or offences;

(ii) The possession of equipment or materials or substances listed in Table I and Table II, knowing that they are being or are to be used in or for the illicit cultivation, production or manufacture of narcotic drugs or psychotropic substances;

(iii) Publicly inciting or inducing others, by any means, to commit any of the offences established in accordance with this article or to use narcotic drugs or psychotropic substances illicitly;

(iv) Participation in, association or conspiracy to commit, attempts to commit and aiding, facilitating and counselling the commission of any of the offences established in accordance with this article.”

22. The parties to the Convention further resolved to provide in addition to conviction and punishment for an offence that the offender shall undergo measures such as treatment, education, after care, rehabilitation or social re-integration. It was further agreed:

“The parties shall endeavour to ensure that any discretionary legal powers under their domestic law relating to the prosecution of persons for offences established in accordance with this article are exercised to maximize the effectiveness of law enforcement measures in respect of those offences and with due regard to the need to deter the commission of such offences.

The parties shall ensure that their Courts or other competent authorities bear in mind the serious nature of the offences enumerated in paragraph 1 of this article and the circumstances enumerated in paragraph 5 of this article when considering the eventuality of early release or parole of persons convicted of such offences.”

23. A perusal of the agreement of the Convention to which India is claimed to be a party, clearly and unambiguously show that the Court’s jurisdiction with respect to the offences relating to narcotic drugs and psychotropic substances was never intended to be ousted, taken away or curtailed. The Declaration was made, subject to “constitutional principles and the basic concepts of its legal system prevalent in the polity of a member country”. The international Agreement emphasised that the Courts of the member countries shall always bear in mind the serious nature of offences sought to be tackled by the Declaration while considering the eventuality of early release or partly of persons convicted of such offences. There was no International Agreement to put a blanket ban on the power of the Court to suspend the sentence awarded to a criminal under the Act notwithstanding the constitutional principles and basic concepts of its legal system. It cannot be denied that judicial review in our country is the heart and soul of our constitutional scheme. The judiciary is constituted the ultimate interpreter of the Constitution and is assigned the delicate task of determining the extent and scope of the powers conferred on each branch of the Government, ensuring that action of any branch does not transgress its limits. A Constitution Bench of this Court in S. P. Sampath Kumar v. Union of India, (1987) 1 SCC 124 held that “it is also a basic principle of the Rule of Law which permeates very provision of the Constitution and which forms its very core and essence that the exercise of power by the Executive or any other authority must not only be conditioned by the Constitution but also be in accordance with law and it is the judiciary which has to ensure that the law is observed and there is compliance with the requirements of law on the part of the Executive and other authorities. This function is discharged by the judiciary by exercise of the power of judicial review which is a most potent weapon in the hands of the judiciary for maintenance of the Rule of Law. The power of judicial review is an integral part of our constitutional system and without it, there will be no Government of laws and the Rule of Law would become a teasing illusion and a promise of unreality”. Again in S. S. Bola v. B. D. Sardana, AIR 1997 SC 3127 it was reiterated that judicial review is the basic feature upon which hinges the checks and balances blended with hind sight in the Constitution as people’s sovereign power for their protection and establishment of egalitarian social order under the Rule of Law. The judicial review was, therefore, held to be an integral part of the Constitution as its basic structure. Similarly, the filing of an appeal, its adjudication and passing of appropriate interim orders is concededly a part of the legal system prevalent in our country.

24. In Ram Charan v. Union of India, 1991 (9) LCD 160, the Allahabad High Court while dealing with the question of the constitutional validity of Section 32A found that as the Section leaves no discretion to the Court in the matter of deciding, as to whether, after conviction the sentence deserves to be suspended or not without providing any guidelines regarding the early disposal of the appeal within a specified period, it suffers from arbitrariness and thus violative of mandate of Articles 14 and 21 of the Constitution. In the absence of right of suspending a sentence, the right of appeal conferred upon accused was termed to be a right of infructuous appeal. However, Gujarat High Court in Ishwarsingh M. Rajput v. State of Gujarat, (1990) 2 Guj LR 1365:1991 (2) Crimes 160, while dealing with the case relating to grant of parole to a convict under the Act found that Section 32-A was Constitutionally valid. It was held:

“Further, the classification between the prisoners convicted under the Narcotics Act and the prisoners convicted under any other law, including the Indian Penal Code is reasonable one, it is with specific object to curb deterrently habit forming, booming and paying (beyond imagination) nefarious illegal activity in drug trafficking. Prisoners convicted under the Narcotics Act are class by themselves. Their activities affect the entire society and may, in some cases, be a death-blow to the persons, who become addicts. It is much more paying as it brings unimaginable easy riches. In this view of the matter, the temptation to the prisoner is too great to resist himself from indulging in same type of activity during the period, when he is temporarily released. In most of the cases, it would be difficult for him to leave that activity as it would not be easy for the prisoner to come out of the clutches of the gang, which operates in nefarious illegal activities. Hence, it cannot be said that Section 32-A violates Article 14 of the Constitution on the ground that it makes unreasonable distinction between a prisioner convicted under the Narcotics Act and a prisoner convicted for any other offences.”

25. Judged from any angle the Section insofar as it completely debars the appellate Courts from the power to suspend the sentence awarded to a convict under the Act cannot stand the test of constitutionality. Thus Section 32-A insofar as it ousts the jurisdiction of the Court to suspend the sentence awarded to a convict under the Act is unconstitutional. We are, therefore, of the opinion that Allahabad High Court in Ram Charan’s case (supra) has correctly interpreted the law relating to the constitutional validity of the Section and the judgment of Gujarat High Court in Ishwarsingh M. Rajput’s case cannot be held to be good law.

26. Despite holding that Section 32-A is unconstitutional to the extent it affects the functioning of the criminal Courts in the country, we are not declaring the whole of the section as unconstitutional in view of our finding that the Section, insofar as it takes away the right of the Executive to suspend, remit and commute the sentence, is valid and intra vires of the Constitution. The Declaration of Section 32-A to be unconstitutional, insofar as it affects the functioning of the Courts in the country, would not render the whole of the section invalid, the restriction imposed by the offending section being distinct and severable.

27. Holding Section 32-A as void insofar as it takes away the right of the Courts to suspend the sentence awarded to a convict under the Act, would neither entitle such convicts to ask for suspension of the sentence as a matter of right in all cases nor would it absolve the Courts of their legal obligations to exercise the power of suspension of sentence within the parameters prescribed under Section 37 of the Act. Section 37 of the Act provides:

“37. Offences to be cognizable and non-bailable. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973-

(a) every offence punishable under this Act shall be cognizable;

(b) no person accused of an offence punishable for a term of imprisonment of five years or more under this Act shall be released on bail or on his own bond unless-

(i) the Public Prosecutor has been given an opportunity to oppose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail.

(2) The limitations on granting of bail specified in clause (b) of sub-section (1) are in addition to the limitations under the Code of Criminal Procedure, 1973 or any other law for the time being in force, on granting of bail.

28. This Court in Union of India v. Ram Samujh, (1999) 9 SCC 429 held that the jurisdiction of the Court to grant bail is circumscribed by the aforesaid section of the Act. The bail can be granted and sentence suspended in a case where there are reasonable grounds for believing that the accused is not guilty of the offence for which convicted and he is not likely to commit any offence while on bail and during the period of suspension of the sentence. The Court further held:

“The aforesaid section is incorporated to achieve the object as mentioned in the Statement of Objects and Reasons for introducing Bill No. 125 of 1988 thus:

“Even though the major offences are non-bailable by virtue of the level of punishments, on technical grounds, drug offenders were being released on bail. In the light of certain difficulties faced in the enforcement of the Narcotic Drugs and Psychotropic Substances Act, 1985 the need to amend the law to further strengthen it, has been felt”.

(Emphasis supplied)

It is to be borne in mind that the aforesaid legislative mandate is required to be adhered to and followed. It should be borne in mind that in a murder case, the accused commits murder of one or two persons, while those persons who are dealing in narcotic drugs are instrumental in causing death or in inflicting death-blow to a number of innocent young victims, who are vulnerable; it causes deleterious effects and a deadly impact on the society; they are hazard to the society; even if they are released temporarily, in all probability, they would continue their nefarious activities of trafficking and/or dealing in intoxicants clandestinely. Reason may be large stake and illegal profit involved. This Court, dealing with the contention with regard to punishment under the NDPS Act, has succinctly observed about the adverse effect of such activities in Durand Dilier v. Chief Secretary, Union Territory of Goa, (1990) 1 SCC 95 as under (SCC p. 104, para 24):

“24. With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizeable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing this Act 81 of 1985 specifying mandatory minimum imprisonment and fine.”

8. To check the menace of dangerous drugs flooding the market, Parliament has provided that the person accused of offences under the NDPS Act should not be released on bail during trial unless the mandatory conditions provided in Section 37, namely,

(i) there are reasonable grounds for believing that the accused is not guilty of such offence; and

(ii) that he is not likely to commit any offence while on bail,are satisfied.”

29. Under the circumstances the writ petitions are disposed of by holding that (1) Section 32-A does not in any way affect the powers of the authorities to grant parole; (2) It is unconstitutional to the extent it takes away the right of the Court to suspend the sentence of a convict under the Act; (3) Nevertheless, a sentence awarded under the Act can be suspended by the appellate Court only and strictly subject to the conditions spelt out in Section 37 of the Act as dealt with in this judgment.

30. The petitioner in Writ Petition No. 169/99 shall be at liberty to apply for parole and his prayer be considered and disposed of in accordance with the statutory provisions, if any, Jail Manual or Government Instructions without implying Section 32-A of the Act as a bar for consideration of the prayer. Similarly petitioner in Writ Petition No. 243/99 is at liberty to move the High Court for suspension of sentence awarded to him under the Act. As and when any such application is filed, the same shall be disposed of in accordance with law and keeping in view the limitations prescribed under Section 37 of the Act and the law laid down by this Court.